TWIN CRISES

Police Brutality During Covid-19

Pandemic in Kenya

May 2021
 About the Independent Medico-Legal Unit

Vision
A world free from torture, violence and discrimination.

Mission
To prevent and respond to torture, violence and discrimination by en-
gaging with state and other non-state actors in rehabilitation, redress,
research, advocacy and movement building, capacity building and
accountability.

Values
• Integrity
• Courage
• Empathy
• Empowerment
• Transparency
• Non-discrimination
• Passion
• Innovation

II
 TWIN CRISES
Police Brutality During Covid-19
Pandemic in Kenya
A study of the Independent Medico-Legal Unit into policing
during the Covid-19 pandemic in Kenya:
16 March to 30 October 2020

ISBN 978-9914-40-428-9
© Independent Medico-Legal Unit, May 2021
 LIST OF ACRONYMS AND ABBREVIATIONS

ACHPR African Charter on Human and People’s Rights

CEDAW Convention on the Elimination of All Forms of
Discrimination Against Women
CRC Convention on the Rights of the Child
CSOs Civil Society Organisations
DPP Director of Public Prosecutions
HRW Human Rights Watch
IAU Internal Affairs Unit
ICCPR International Covenant on Civil and Political
Rights
ICESCR International Covenant on Economic, Social
and Cultural Rights
IMLU Independent Medico-Legal Unit
IPOA Independent Policing Oversight Authority
KNCHR Kenya National Commission on Human Rights
NPS National Police Service
NPSC National Police Service Commission
OHCHR Office of the High Commissioner for Human
Rights
UDHR Universal Declaration of Human Rights
UN United Nations
WHO World Health Organization

IIV
I
 Table of Contents
List of Acronyms and Abbreviations..........................................II
Acknowledgements...........................................................................IV
Executive Summary.............................................................................V
Contextual Background.....................................................................1
Covid-19 and Human Rights Standards.....................................6
Responding to the Pandemic: Covid-19
Mitigation Measures..........................................................................18
Twin Crises: The Pain of Police Brutality
in the Face of the Pandemic.........................................................24
Watching the Leviathan: The Role Played
by Non-State Actors........................................................................48
Remedying Police Excesses...........................................................60
Conclusions and Recommendations........................................72
Conclusions...........................................................................................72
Recommendations.............................................................................74

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III
 Acknowledgements
The Independent Medico-Legal Unit would like to thank, Peter Kiama,
the Executive Director, for conceptualising the idea of vigilance dur-
ing COVID-19, the research concept and strategic support to the team
throughout the monitoring and documentation period. The strategic
guidance and quality control during the drafting of the situational
briefs, media communications, and editing this report was invaluable.
We would also like to thank Carolyn Tunnen for co-ordinating the Pro-
grammes team in monitoring, documenting, reporting and responding,
and compiling credible and impactful situational briefs that have im-
mensely informed this report. Our gratitude also goes to Kevin Mwangi
for leading the monitoring and documentation of compliance to human
rights standards in policing during COVID-19 pandemic enforcement,
and rapid response to cases of violations.
We also thank the Redress, Rehab and Advocacy members for their
pro-activeness in responding to all reported cases in a timely manner
and providing much needed medical, psychological and legal support to
the survivors and families of victims, and all support staff for ensuring
all logistics were on point during a very difficult operating environment.
We are also grateful to the research team of Edward Okello and Phoebe
Nadupoi of Bassel Africa Consult for their elaborate research and put-
ting together this report. Their depth of professionalism and knowledge
of human rights is evident in the report. We thank Simon Ndonye for
the design work and Samuel Tobiko for the photography in the report.
Similarly, we appreciate the Independent Policing Oversight Authority
for availing critical data to the research team.
Last but not least, we thank the Royal Norwegian Embassy, Open Society
Initiative for Eastern Africa, DIAKONIA Sweden and Sigrid Rausing Trust
for their financial support for the research and publication of this report.

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IV
 Executive Summary
T he outbreak of Coronavirus pandemic in late 2019 created a
monumental and unprecedented health crisis that tested the
global foundation of human rights, the rule of law and democ-
racy. Although appearing as a public health emergency, the pan-
demic presented formidable social and economic challenges to
the global community. At the time of declaring the outbreak as
a pandemic on 11 March 2020, the World Health Organization
urged countries to take urgent and aggressive measures to stop
the spread of the virus and provide the necessary support to the
affected people. In taking the measures, countries were urged
to strike a balance between protecting health and minimising
socio-economic disruptions, and respecting human rights. Like-
wise, while acknowledging the enormous challenges presented
by the pandemic, the United Nations called for the adoption of
a human rights-based approach in responding to the pandemic.

Kenya, like other countries in the world, introduced a raft of measures

to curb the spread of the virus and mitigate its impact on her people.
These measures immensely affected the everyday life of the public,
with the greatest impact in the human rights sphere. The containment
measures instantaneously impacted people’s lives and livelihoods. In
appreciation of the effects of the pandemic and the containment mea-
sures, the Government introduced other measures in the form of fiscal
incentives and social protection to cushion the public, especially the
poor and vulnerable groups.

Whereas the necessity of the measures could not be denied, their en-
forcement raised more concerns than the pandemic itself. In particular,
the country became inundated with reports of police brutality against
civilians, especially the low income earners. Cases of deaths and inju-

V
VII
 ries arising out of police excesses regularly featured in various media
prompting the President to unprecedentedly apologise to the nation. In
effect, it was a twin crises for the country – first from the virus – as the
police action became the ‘real pandemic.’ The protectors had become
the tormentors!

This study was, therefore, informed by the foregoing with the primary
objective of assessing the conduct of the police in enforcing the mea-
sures in relation to the protection of the right to life, health and human
rights with a specific focus on extra-judicial executions, enforced dis-
appearances, torture and ill-treatment. The study, which is one of the
approaches employed by the Independent Medico-Legal Unit to moni-
tor the Government’s adherence to human rights obligations, covers the
period between 16 March and 30 October 2020.

The study revealed that indeed there was widespread use of excessive,
arbitrary and unnecessary force by the police against the public in the
enforcement of the measures leading to loss of lives and injuries. The
poor and underprivileged bore the brand of the violence. The Indepen-
dent Medico-Legal Unit, for instance, received 25 cases of extra-judicial
executions and 43 cases of torture and ill-treatment during the peri-
od under review. Some of the affected families lost their breadwinners
while others were left with life-threatening injuries. For years, they will
contend with financial, material, psychological, health and social chal-
lenges resulting from police brutality. Evidently, the conduct of the po-
lice violated the constitutional and legal standards in Articles 26, 28,
29, 238 and 244 of the Constitution of Kenya, and the National Police
Service Act, Prevention of Torture Act and the National Police Service
Standing Orders. In addition, police conduct contravened the standards
on the rights to life, human dignity, and prohibition of torture and cruel
treatment in the various international human rights instruments ratified
by Kenya.

VIII
VI
The widespread and recurring incidences of police brutality pointed to
a dysfunctional institutional system characterised by poor supervision
and lack of accountability. Indeed, the institutional structures and pro-
cesses of the National Police Service failed to appreciate the nature of
the crisis, socio-economic contexts of the Kenyan population and the
need for accountability in the enforcement of the measures.

Whereas various Government agencies made efforts to ensure account-

ability of the police for the violations, such did not meet the prescribed
accountability standards. The actions failed the test of responsiveness,
transparency and accountability. Opaque and inordinate delays in the
investigations, prosecution and administrative processes coupled with
lack of Government support and reparation to the victims of the viola-
tions undermined police accountability.

Further, it is important to note that public institutions, with the excep-

tion of the Kenya National Commission on Human Rights, refused to
acknowledge or use the internationally accepted phrase ‘extra-judicial
execution’ even though it is well defined in international instruments
of which Kenya is a signatory. This potentially undermined the appreci-
ation of the gravity of the violations and the attendant responses by the
oversight agencies. In effect, the victims became mere statistics, and
society immune to serious human rights violations.

Based on the findings and in appreciation of the gaps and challenges,

the following key proposals have been recommended to improve po-
lice accountability in Kenya.
i) The Government should develop and implement a holistic ap-
proach that integrates human rights, public participation and
accountability in crises or emergencies. The strategy should in-
corporate social science for the appreciation of the different
contexts and drive behaviour change.
ii) There is need to strengthen transparency and accountability in
the exercise of public power by policing and oversight bodies.

IX
VII
 This entails curtailing the arbitrary, whimsical or abuse of power
relating to investigation, prosecution and disciplinary action.
iii) The National Police Service should embrace robust supervision
and internal monitoring of police conduct and hold supervisors
accountable for violations committed by officers working under
them, in appropriate cases.
iv) The National Police Service needs to adopt global best practic-
es on policing the Covid-19 pandemic to guide its enforcement
role. Such could take the form of guidelines that embed human
rights principles, accountability and community policing, which
should be reviewed during a crisis or emergency.
v) The Government, through the Attorney General, should facili-
tate victims to access reparations through actual legal represen-
tation or non-judicial avenues. In non-judicial means, the Attor-
ney General may adopt alternative dispute resolution methods
for expeditious and fair reparations.
vi) The National Police Service needs to initiate periodic engage-
ments with key stakeholders – state and non-state – to explore
areas of collaboration, best practices, gaps, challenges and solu-
tions (as in the case of National Council on the Administration
of Justice or Court Users Committees).
vii) The Government should engender a culture of regular and time-
ly publication and dissemination of information to the public.
Such should include proactive disclosure of information on the
investigations, prosecution and administrative action undertaken.
Similarly, the Commission on Administrative needs to be vigilant
to ensure institutions proactively provide information.

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XI
 1.0

CONTEXTUAL
BACKGROUND

XII
T his report stems from a study into police conduct in Kenya
during the enforcement of containment measures against
Coronavirus disease 2019 (Covid-19) pandemic. It focus-
es on the period running from 16 March to 30 October 2020
and gives attention to human rights, focusing on extra-judicial
executions, torture and ill-treatment, and enforced disappear-
ances. The study was commissioned by the Independent Med-
ico-Legal Unit (IMLU), a governance, health and human rights
non-governmental organisation whose vision is ‘A �orld free
from �orture, �iolence and �iscrimination’. In undertaking its
work, IMLU deploys research for vital referencing to inform ad-
vocacy and evidence-based programming in general. On this ba-
sis, IMLU engaged Bassel Africa Consult to undertake a study to
assess the conduct of members of the National Police Service
(NPS) in the enforcement of Covid-19 pandemic mitigation and
preventive measures.

The study is in line with IMLU’s approach, which encompasses monitor-

ing Government adherence to its human rights obligations. The study
took into account policy and legal instruments, situation reports by dif-
ferent actors, media reports, case law, advisories, and other governmen-
tal and non-governmental bodies’ interventions. Whereas the study pri-
marily used secondary data, the researchers also collected primary data
from critical stakeholders using questionnaires. It is, however, worth
noting that by the time of compiling this report, key institutions – NPS,
National Police Service Commission (NPSC) and Office of Director of
Public Prosecutions – were yet to respond to requests for information.

1.1 Context
1.1.1 Phenomenon of Covid-19 pandemic
Coronavirus disease 2019 (Covid-19) is an infectious disease caused by
the coronavirus. The Covid-19 virus spreads through droplets of saliva

1
 or discharge from the nose when an infected person sneezes.1 Covid-19
has been traced to Wuhan, Hubei Province in China where cases were
reported in December 20192 although media reports3 indicated that the
first case was reported in the same region on 17 November 2019. The rap-
id spread of the virus impelled the World Health Organization (WHO)
to declare the outbreak of Covid-19 to be a Public Health Emergency of
International Concern on 30 January 2020. Consequently, WHO called on
all countries to ‘be prepared for containment, including active surveil-
lance, early detection, isolation and case management, contact tracing
and prevention of the further spread of 2019-nCoVinfection, and to share
full data with WHO.4 Due to the rapid spread of the cases, WHO declared
Covid-19 a global pandemic on 11 March 2020 and urged countries to take
urgent measures, including testing and isolating Covid-19 patients, tracing
and mobilising people to tame the spread of the virus. As of 30 Octo-
ber 2020, a total of 44,351,506 cases of the disease and resultant 1,171,255
deaths had been confirmed worldwide.

1.1.2 Covid-19 Pandemic in Kenya

Kenya recorded the first Covid-19 case on 12 March 2020. Consequently,

the Government urged the public to observe precautionary measures to
curb the spread of the virus. These included regular and thorough washing
of hands with soap and water, or use of alcohol-based hand sanitiser, main-
taining physical distance, and maintaining respiratory hygiene. Further, the
Government suspended all public gatherings, meetings, religious crusades,
games, inter-school events, and prison visits. The Government also imposed

1 WHO, Coronavirus: Overview <https://www.who.int/health-topics/coronavirus#tab=tab_1> accessed

on 27 December 2020.
2 WHO (n 1).
3 Josephine Ma, ‘Coronavirus: China’s first confirmed Covid-19 case traced back to November
17’ South China Morning Post (13 March 2020) <https://www.scmp.com/news/china/society/
article/3074991/coronavirus-chinas-first-confirmed-covid-19-case-traced-back> accessed on
27 December 2020.
4
WHO, ‘Statement on the Second Meeting of the International Health Regulations (2005) Emer-
gency Committee regarding the outbreak of novel Coronavirus (2019-nCoV) (30 January 2020)
<https://www.who.int/news/item/30-01-2020-statement-on-the-second-meeting-of-the-in-
ternational-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-nove-
l-coronavirus-(2019-ncov)> accessed on 27 December 2020.

2
travel restrictions on disease epicentre counties and limited foreign travel
unless necessary. The impact of the measures was immediate. For instance,
Parliament cancelled a trip by about 15 female Members of Parliament and
staff members who were to attend the 64 Session of the Commission on
the Status of Women in New York. Parliament had already paid the group
over Ksh27 million in daily subsistence allowance to facilitate travel.5 Other
measures included contract tracing of persons who had been in contact
with those infected with the virus and daily briefings.6
On 25 March 2020, the President addressed the nation stipulating the in-
terventions to cushion Kenyans against economic effects of the pandem-
ic. In his address, he announced a nation-wide dusk-to-dawn curfew that
would take effect on 27 March 2020. Further, he announced immediate
take-over of the management of the Kenya Ferry Services by the National
Police Service, the Coast Guard and the National Government Adminis-
tration Officers.7
In its response to the Covid-19 pandemic, the Government passed Regu-
lations and policies to guide the mitigation measures put in place. Con-
sequently, there were changes in an array of areas including the operation
of public service vehicles, sale of alcohol, operation of restaurants, and
movement.8 The Public Health Act9 and the Public Order Act10 empow-
ered NPS to enforce these measures to mitigate the pandemic. As of 30
October 2020, Kenya had recorded a total of 52,613 cases and 963 deaths
from the disease.

5 Francis Gachuri, ‘15 Female MPs under pressure to refund Ksh.27M allowance for cancelled US trip,’
Citizen Digital (10 March 2020) <https://citizentv.co.ke/news/15-female-mps-under-pressure-to-re-
fund-ksh-27m-allowance-for-cancelled-u-s-trip-325917/> accessed on 4th January 2021.
6 Ministry of Health, First case of Coronavirus disease in confirmed in Kenya (13 March 2020)
<https://www.health.go.ke/first-case-of-coronavirus-disease-confirmed-in-kenya/> accessed
on 4 January 2021.
7 Government of Kenya, ‘Presidential address on the State interventions to cushion Kenyans
against economic effects of COVID-19 pandemic’ (25 March 2020) <https://www.president.
go.ke/2020/03/25/presidential-address-on-the-state-interventions-to-cushion-kenyans-against-
economic-effects-of-covid-19-pandemic-on-25th-march-2020/> accessed on 4 January 2021.
8 Centre for Human Rights and Policy Studies, ‘Policing the Covid-19 crisis in Kenya - Policy op-
tions for management of public health emergencies’ May 2020.
9 Public Health Act, Chapter 242 of the Laws of Kenya, s 101.
10 Public Order Act, Chapter 56 of the Laws of Kenya.

3
 1.2 Justification for Focusing on Police
As it has already been established in the preceding section, NPS is em-
powered to enforce measures to tame the Covid-19 virus. In effect,
Covid-19 inadvertently became a security or policing issue. However,
it is essential to note that the essence of enforcement was to address
the Covid-19 pandemic threat by reducing exposure. Therefore, it is of
paramount importance to explore the conduct of NPS in helping the
country to manage the crisis.

There were widespread reports of police excesses during the pandemic

that prompted the study. Right from the onset of curfew order in Kenya,
different media outlets and rights groups reported police abuses. The
infamous Likoni Ferry terminus account of 27 March 2020,11 for instance,
remains the quintessential picture of police brutality in the country. In
this particular case, police descended on commuters before the com-
mencement of curfew period. IMLU and Human Rights Watch reported
that at least six people died from police violence during the first 10 days
of dusk-to-dawn curfew in Kenya. This included the case of a 13-year-
old boy who was allegedly shot dead by police at the balcony of their
house at Kiamaiko in Nairobi’s Eastlands area. 

Police conduct during the pandemic was criticised and attracted ac-
tions from different actors. Right from the onset, IMLU and other civil
society organisations (CSOs) under the umbrella Police Reforms Work-
ing Group - Kenya issued a joint statement condemning the violence
meted out on the public on the first night of the curfew. Consequently,
IMLU began a monitoring exercise in counties where most cases of hu-
man rights violations were reported. These included Kakamega, Busia,
Nairobi, Mombasa, Kilifi, Nakuru and Homa Bay. Additionally, IMLU and
different oversight bodies including the Independent Policing Oversight
Authority (IPOA) – a statutory civilian police oversight body – and the
Kenya National Commission on Human Rights (KNCHR) reported receiv-

11 NTV Kenya, ‘Chaos at Likoni Ferry Channel as GSU offices descend on commuters’ (27 March
2020) <https://www.youtube.com/watch?v=BqMVYZ0pUBc> accessed on 3 January 2021.

4
ing complaints against the police. In light of the violations, different
organisations issued statements and advisories to NPS calling for law
enforcement officers to uphold human rights and investigations into
human rights violations and abuses by police officers.12 Further, some
actors moved to court to file cases against the Government and NPS
for police excesses.

The Law Society of Kenya, for instance, filed a petition at the High Court
seeking, among other things, a declaration that the unreasonable use of
force in enforcing the curfew by NPS was unconstitutional13. Similarly,
IMLU filed a case in Kakamega on behalf of victims of police brutality.
Amnesty International Kenya, Haki Africa, Kituo Cha Sheria and Inte-
national Justice Mission Kenya also similarly filed a suit, on behalf of
police brutality victims.14 It is imperative to document keystakeholders’
actions and perspectives and provide recommendations for policy, le-
gal and administrative improvement. The aforestated and other inci-
dents explored in the subsequent parts of this report provide grounds
for assessing police conduct.

12
See, for instance, IMLU, ‘Petition to the Inspector General of Police: ‘Petition for impartial in-
vestigation into police brutality during the Covid-19 curfew’ (27 April 2020) <https://www.imlu.
org/index.php/shortcode/press-release/send/6-press-releases/91-petition-for-impartial-in-
vestigation-into-police-brutality-during-the-covid-19-curfew> accessed on 11 March 2021; IMLU
Press Release: ‘Police must uphold human rights standards while enforcing the dusk to dawn
curfew in the fight against Covid-19’ (28 April 2020) <https://www.imlu.org/index.php/ short-
code /press-release/send/6-press-releases/90-police-must-uphold-human-rights-standards-
while-enforcing-the-dusk-to-dawn-curfew-in-the-fight-against-covid-19> accessed on 11 March
2021; KNCHR, ‘Safeguarding human dignity and human rights in combating COVID-19’ (29 April
2020) <https://www.knchr.org/Articles/ArtMID/2432/ArticleID/1096/Press-ReleaseSafeguard-
ing-Human-Dignity-and-Human-Rights-in-Combating-COVID-19> accessed on 6 January 2021;
KNCHR, ‘Pain and Pandemic: Unmasking the State of Human Rights in Kenya in Containment of
the COVID-19 Pandemic’ (June 2020); and Police Reforms Working Group-Kenya, ‘Police must stop
the use of excessive force while enforcing the curfew order (27 March 2020).
13
Law Society of Kenya v Hillary Mutyambai Inspector General National Police Service & 4 Oth-
ers; Kenya National Commission on Human Rights & 3 others (Interested Parties) [2020] eKLR.
14
Amnesty International Kenya, Class suit <https://www.amnestykenya.org/class-suit-police-brutality/>
accessed on 3 January 2021.

5
 2.0

COVID-19 AND HUMAN

RIGHTS STANDARDS

6
T he relationship between Covid-19 and human rights is
complex. Whereas, at its core, the pandemic is a public
health issue, its impact on the whole spectrum of human
rights is debilitating and far reaching. In this regard, as correct-
ly noted by WHO, Covid-19 pandemic and the responses to it
ought to take a human rights dimension.15 This position is fur-
ther buttressed by the United Nations (UN), which advocates
for the rights-based approach to the fight against the pandem-
ic.16 Specifically, the linkage can be identified in the following
instances: (a) effects of the pandemic on human rights, (b) the
impact of the measures taken to prevent and control the pan-
demic, and (c) implementation or enforcement of the measures
against the pandemic.
First and foremost, Covid-19 pandemic is a threat to human existence
in so far as it directly impacts the rights to life and health. In the sec-
ond instance, the measures taken to prevent and control the pandemic,
some of which have been drastic, have provided avenues for human
rights violations and restricted the enjoyment of human rights. For in-
stance, restrictions on movement, and public and social gatherings im-
pact the freedom of movement, freedom of assembly, freedom of asso-
ciation, freedom of religion, right to education, right to work, and right
to health. It is also worth noting that the scaling down of public services
or outright closure of public offices and private businesses have im-
pacted people’s lives and livelihoods. The effect of the pandemic on
human rights was summarised by the Committee on Economic, Social
and Cultural Rights thus:17
15
WHO, ‘Addressing human rights as key to the Covid-19 response’ (21 April 2020). See also
the UN, ‘Covid-19 and human rights: we are all in this together’ (April 2020); and the African
Commission on Human and People’s Rights, ‘Press statement on human rights-based effective
response to the novel Covid-19 virus in Africa’ (19 March 2020).
16
UN (n 15). The UN has identified the right to life, right to health and freedom of movement as
being at the heart of the effective responses to Covid-19.
17
The Committee on Economic, Social and Cultural Rights, ‘Statement on the Coronavirus dis-
ease (Covid-19) pandemic and economic, social and cultural rights’ (17 April 2020). See the Office
of the High Commissioner for Human Rights (OHCHR), ‘Internal HRTB toolkit of treaty law per-
spectives and jurisprudence in the context of Covid-19’ [(May 2020) (updated on 15 July 2020)].

7
 The Covid-19 pandemic and the response to it, including
the closure of work places, disruption to supply chains,
travel bans, restrictions on gatherings, have wide rang-
ing effects on the enjoyment of a broad range of eco-
nomic, social and cultural rights.
In addition, the use of emergency powers to address the pandemic
presents the risk of abuse of human rights by law enforcement agen-
cies. In terms of the rule of law, Covid-19 pandemic piles pressure on the
governance system in terms of access to justice, participatory gover-
nance, and oversight and accountability for violations of human rights.
Third, human rights can be undermined during the enforcement of the
measures by law enforcement agencies.18 This is especially so due to the
use of emergency powers coupled with minimal oversight during the
period. As such, the risk of human rights violations by law enforcement
agencies is increased. Such violations may include unlawful arrests and
detention, restriction of movement and assembly, and torture and cruel
treatment. Besides, the persons deprived of their liberty in detention
facilities in the course of enforcement become vulnerable to the viola-
tion of rights such as clean water and sanitation, and access to health-
care services.
It is worthwhile to note that whereas everybody in society can feel
the effects of the pandemic, the poor and vulnerable groups such as
women, children, persons with disability and the homeless are dispro-
portionally affected. As stated by UN, ‘they are not only at greatest risk
from the virus itself, they are most severely affected by the negative im-
pacts of measures to control it.’19 This explains the reason the majority
of those whose rights have reportedly been violated during this period
are from these groups. This ultimately widens the economic and social
18
Amnesty International documented instances of use of excessive force by law enforcement
officers in a number of European countries to enforce lockdown measures during the pandemic
period. See Amnesty International, ‘Policing the pandemic: human rights violations in the en-
forcement of Covid-19 measures in Europe’ (2020). See also KNCHR (n 12); and Kenya Human
Rights Commission, ‘Wanton impunity and exclusion: A report based on human rights violations
amid Covid-19 in Kenya’ (2020).
19
UN (n 15).

8
inequalities in society, which in themselves, are the subject of human
rights discourse.

2.1 COVID-19 Policing Principles and Standards

Generally, human rights are at the heart of the Covid-19 pandemic and
the responses to it. Undoubtedly, this brings into play the application
of the principles and norms prescribed under different international
human rights instruments, complemented by national instruments. The
instruments provide a framework for the respect, protection and ful-
filment of human rights by states parties. In addition, they form the
basis for assessing compliance by states parties with their human rights
obligations. In the context of Covid-19 pandemic, the focus should not
only be on the principles and standards set out regarding the right to
health, but also on other rights which would largely be affected by the
pandemic and the responses to it.20

2.1.1 International Principles and Standards

Covid-19 is first and foremost a public health concern which brings the
right to health into focus. According to the Universal Declaration of
Human Rights (UDHR), ‘everyone has the right to a standard of living
adequate for the health and well-being of himself and his family’.21 This
is further buttressed by Article 12 of the International Covenant on Eco-
nomic, Social and Cultural Rights (ICESCR) which obligates states par-
ties to ensure the full realisation of the highest standard of physical
and mental health.22 The elements of the right to health are availability,
20
Some of the rights impacted most by Covid-19 include the rights to life, prohibition of torture,
ill-treatment or degrading treatment, human dignity, education, access to justice, work, water
and sanitation, movement, assembly, religion and information.
21
UDHR, A 25(1). It is worth noting that the right to health is closely related to rights to life, hu-
man dignity, non-discrimination, equality, prohibition of torture, privacy, movement, assembly,
association, water and sanitation, food, social security, education, work and housing.
22
The right to health is also provided for under Article 5(e)(iv) of the International Convention
on the Elimination of All Forms of Racial Discrimination of 1965, Article 11.1(f) of the Convention
on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979, Article 24
of the Convention on the Rights of the Child (CRC) of 1989, Article 25 of the Convention on the
Rights of Persons with Disabilities of 1975, and Article 16 of the African Charter on Human and
People’s Rights (ACHPR) of 1981.

9
 accessibility, acceptability and quality of healthcare services.23 Accord-
ingly, states parties are obligated to take deliberate, concrete and target-
ed steps to achieve the full realisation of the right to health. In terms of
Covid-19 pandemic, the responsibility includes equal and timely access
to preventive and curative services such as screening, protective equip-
ment, drugs and treatments, and adequate system of urgent medical
care.24 The obligation further includes provision of adequate resources
and taking mitigation measures to protect those who are likely to be
most affected.25 In instances of restrictions on grounds of health, such
should be necessary, temporary, proportionate and non-discriminatory.
The right to life is the fountain from which other rights
spring and forms the starting point for states’ obliga-
tions under international human rights law.
Besides the right to health, the right to life is one of the rights that
have been identified by OHCHR as key in the fight against Covid-19.26
The right to life, as aptly described by the Human Rights Committee,
is supreme and the fountain from which other rights spring.27 As such,
it forms the starting point for states’ obligations under international
human rights law. Principally, states parties are obligated to ensure that
no person is deprived of his life arbitrarily, even in emergency situations
such as Covid-19 pandemic.28 This includes the prohibition of use of
unlawful and excessive force by law enforcement agencies or any other
person that may cause loss of lives.29 The inviolability of the right to life
23
UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 14: Article 12
of ICESCR’ (Right to the highest attainable standard of health), (2000).
24
OHCHR (n 17).
25
OHCHR, ‘Compilation of Statements by Human Rights Treaty Bodies in the context of
Covid-19’ (September 2020).
26
UN (n 15).
27
OHCHR (n 17).
28
Article 3 of UDHR, Article 6 of the International Covenant on Civil and Political Rights (ICCPR)
and Article 4 of ACHPR.
29
There should be restraint in the use of force by law enforcement agencies determined by a
legitimate objective, the only minimal means of achieving the objective, proportionality and
minimal duration as prescribed under different international instruments, including the United
Nations Code of Conduct for Law Enforcement Officials of 1979 and the United Nations Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials of 1990.

10
even in emergency situations is a jus cogens that has been unequivocally
enunciated globally by different human rights bodies.30 In its advisory
regarding Covid-19 pandemic, OHCHR notes that:31

The right to life, as a non derogable right, must be up-

held in all responses to Covid-19…States parties must
also refrain from the use of lethal force, extra-judicial
killings and other practices impacting the right to life
when enforcing emergency provisions, and/or when
faced with dissent from those critical of government
responses.
The right to life includes the prohibition against extra-judicial execu-
tions, and is intrinsically related to other rights such as human dignity,
health, food, the prohibition of torture and degrading treatment, arbi-
trary detention and security of the person, and enforced disappearance
of individuals all of which represent grave threats to life. Indeed, while
noting the increased risk of torture and enforced disappearances during
the Covid-19 pandemic, OHCHR urged states not to practice, permit or
tolerate torture or enforced disappearances at any time in accordance
with their international obligations.32

30
See UN Human Rights Committee, ‘General Comment No. 36: Article 6 of ICCPR’ (Right to
life) (2019); African Commission on Human and People’s Rights, ‘General Comment No. 3: Article
4 of ACHPR (Right to life)’ (2015), and the Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights (1984).
31
OHCHR (n 17).
32
OHCHR (n 25). States are obligated under the International Convention on the Protection of
All Persons from Enforced Disappearance (2006), and the Declaration on the Protection of all
Persons from Enforced Disappearance (1992) to take measures to prevent enforced disappear-
ance of individuals within their jurisdictions or those over whom they exercise jurisdiction. This
obligation subsists even during emergencies such as Covid-19 pandemic. In cases of disappear-
ance, they are required to take appropriate measures, including swift investigations, holding
the perpetrators to account, and provision of compensation that is prompt, fair and adequate.
This position is complemented by the provisions of the Principles on the Effective Prevention
and Investigation of Extra-Legal Arbitrary and Summary Executions of 1989 which goes beyond
prohibiting extra-judicial killing to provide for prompt investigation, access to information by
any person deprived of his/her liberty, their relatives, lawyers or any other person, and fair and
adequate compensation.

11
 The prohibition against torture recognises the intrinsic
value of human beings and forms the foundation of a
democratic society.

In terms of human dignity, the human rights law and the normative
framework prohibit torture, cruel or ill-treatment or punishment even
in emergency situations.33 The prohibition against torture promotes
human dignity by recognising the intrinsic value of human beings, and
forms the foundation of a democratic society.34 As such, no deroga-
tion from this right is allowed under any circumstances35 and states are
obligated to take measures to promptly and fairly redress violations,
including ensuring accountability by the perpetrators and reparations
for victims of torture.36 In its advisory to states, OHCHR reiterates that
‘Covid-19 should not be used as an excuse for torture or to circum-
vent or distract from the universally recognised duty of states parties
to eradicate all forms of torture, inhuman or degrading treatment or
punishment’.37 The breadth of this right extends to persons held in plac-
es of detention or quarantine facilities for breach of the measures or
to contain the spread of the pandemic.38 The measures taken in such

33
Article 5 of UDHR; Article 7 of ICCPR; Article 5 of ACHPR; Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment; and the Optional Protocol to the Con-
vention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2002).
34
Iain Currie & Johan de Waal, The Bill of Rights Handbook, (5th edn, Juta & Company Limited 2005) 275.
35
UN Committee Against Torture, ‘General Comment No. 2: Article 2 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2008); UN Human
Rights Committee, ‘General Comment No. 20: on Article 7 of ICCPR (1992); and the Siracusa Prin-
ciples (n 30). Similarly, Article 5 of the United Nations Code of Conduct for Law Enforcement
Officials prohibits any infliction, instigation or toleration of torture or inhuman treatment even
in situations of threats to national security or other public emergency.
36
UN Committee Against Torture, ‘General Comment No. 3: Article 14 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2012); African Commis-
sion on Human and People’s Rights, ‘General Comment No. 4: Article 5 of ACHPR (Right to redress
for victims of torture and other cruel, inhuman or degrading punishment or treatment). OHCHR, the
African Commission on Human and People’s Rights & the Association for the Prevention of Torture,
‘Resolution on Guidelines and measures for the prohibition and prevention of torture, cruel, inhu-
man or degrading treatment or punishment in Africa’ (The Robben Island Guidelines) (2008).
37
OHCHR (n 17).
38
According to the Body of Principles for the Protection of all Persons under any Form of De-
tention or Imprisonment of 1988, torture or cruel or inhuman treatment of persons held in de-
tention or imprisonment is strictly prohibited even in emergency situations. States are obligated

12
instances should not themselves breach the human rights obligations or
create conditions that constitute ill-treatment.

The international human rights legal framework also provides the princi-
ples and standards for other rights that are at play in respect to Covid-19
pandemic with the freedom of movement being at the apex.39 Other
impacted rights are the right to equality and non-discrimination,40 free-
dom of information,41 right to education,42 freedom of assembly,43 free-
dom of association,44 freedom of religion,45 freedom of expression,46
right to housing,47 right to work,48 right to privacy,49 right to food,50 right
to water and sanitation,51 right to social security52 and right of access to
justice53 among others. Accordingly, states are required to take measures
that respect, protect, promote and fulfil their obligations in respect of
the rights prescribed under international law. This responsibility extends
to emergencies or public health situations such as Covid-19 pandemic
when derogations or restrictions of some rights are allowed, subject to
to promptly take measures including investigations, prosecution and reparation in the event of
breach of the Principles.
39
Article 13 of UDHR, Article 12 of ICCPR, and Article 12 of ACHPR. The freedom of movement
has particularly been crucial during the period of Covid-19 pandemic not only for containment
purposes, but as a facilitative right for the enjoyment of other rights such as work and access to
healthcare services that are key in mitigating the effects of the pandemic.
40
Articles 2, 7 & 21 of UDHR; Articles 2, 3 & 20, 25 & 26 of ICCPR; Articles 2 & 3 of ICESCR; Article
2 of CEDAW; Article 2 of CRC; Articles 2, 3 & 13 of ACHPR; and Article 2 of the Protocol to the
African Charter on Human and People’s Rights on the Rights of Women in Africa, 2003 (Maputo
Protocol).
41
Articles 19 & 21 of UDHR; Articles 19 & 25 of ICCPR; and Articles 9 & 13 of ACHPR.
42
Article 26 of UDHR; Article 13 of ICESCR; Article 10 of CEDAW; Article 28 of CRC; and Article
17 of ACHPR.
43
Article 20 of UDHR; Article 21 of ICCPR; Article 15 of CRC; and Article 11 of ACHPR.
44
Article 20 of UDHR; Article 22 of ICCPR; Article 15 of CRC; and Article 10 of ACHPR.
45
Article 18 of UDHR; Article 18 of ICCPR; Article 14 of CRC; and Article 8 of ACHPR.
46
Article 19 of UDHR; Article 19 of ICCPR and Article 9 of ACHPR.
47
Article 25 of UDHR; Article 11 of ICESCR; and Article 16 of the Maputo Protocol.
48
Article 23 of UDHR; Articles 6 & 7 of ICESCR; Article 11 of CEDAW; Article 15 of ACHPR; and
Article 13 of the Maputo Protocol.
49
Article 12 of UDHR; and Article 17 of ICCPR.
50
Article 25 of UDHR; Article 11 of ICESCR; and Article 15 of the Maputo Protocol.
51
Articles 11 & 12 of ICESCR.
52
Article 25 of UDHR; Article 9 of ICESCR; Article 11 of CEDAW; and Article 26 of CRC.
53
Article 10 & 21 of UDHR; Article 14 & 25 of ICCPR; and Articles 7 & 13 of ACHPR.

13
 legality, necessity, proportionality, and equality and non-discrimination.54
In such instances, states are still obligated to take measures to mitigate
the adverse impact of their actions especially on the vulnerable.55

2.1.2 National Principles and Standards

In the context of Covid-19 pandemic, Kenya is bound by the principles and
standards prescribed in different international legal instruments, including
those relating to governance and human rights. Such principles and stan-
dards form part of the law of Kenya by virtue of Article 2(5) and (6) of the
Constitution of Kenya, 2010 (the Constitution).56 The Kenyan philosophy is
aptly captured in the Preamble of the Constitution which decrees the ‘as-
pirations of all Kenyans for a government based on the essential values of
human rights, equality, freedom, democracy, social justice and the rule of
law.’ These principles and standards are particularly enunciated under Arti-
cle 10 as national values and principles of governance that bind and guide
every person in the performance of duties and responsibilities.57

In relation to human rights, the Bill of Rights provides an extensive frame-

work that guides any action by the state or any other person on Covid-19
pandemic.58 The Constitution, for instance, obligates the Government to
ensure the attainment of the highest standard of health, which includes
54
Some of the rights that are non-derogable even during emergency situations are the right to
life; freedom from torture, cruel, inhuman or degrading treatment or punishment, freedom from
slavery or servitude, freedom of thought, conscience and religion; right to fair trial, and the right
to recognition as a person before the law.
55
In the case of women, for instance, the UN while noting the disproportionate impact of
the pandemic and the responses to it, has urged states to take measures to ensure access to
healthcare services, livelihood, social protection, and protection against any form of violence.
See OHCHR (n 17).
56
The Article provides that the general rules of international law shall form part of the law of
Kenya, and that any treaty or convention ratified by Kenya shall form part of the law of Kenya.
57
The national values and principles of governance include the rule of law, democracy, partici-
pation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights,
non-discrimination, protection of the marginalised, good governance, integrity, transparency,
accountability and sustainable development.
58
The integral nature of the Bill of Rights in the national social, economic and cultural develop-
ment is manifested by the fact of it being one of the entrenched provisions of the Constitution
which can only be amended by way of a referendum.

14
the right to healthcare services and reproductive healthcare’.59

This entails taking necessary steps to ensure the progressive realisation of

the right to health, which is at the heart of the pandemic. This is comple-
mented by the Health Act which not only reiterates the contents of the
right to health, but also Kenya’s obligation to observe, protect, respect,
promote and fulfil the right to the highest attainable standard of health.60
Relatedly, the Constitution recognises the sanctity of life by outlawing
arbitrary deprivation of life or threats to life, which include extra-ju-
dicial execution,61 arbitrary arrest or detention,62 torture, and corporal,
cruel, inhuman or degrading treatment or punishment.63 Other relevant
rights include equality and non-discrimination,64 human dignity,65 pri-
vacy,66 expression,67 access to information,68 association,69 assembly,70
movement,71 conscience and religion,72 fair hearing,73 persons in deten-
tion or custody,74 and socio-economic rights such as housing, water,
food, social security and education.75 It is instructive to note that in
line with the international principles and standards, acts that consti-
tute torture, inhuman or degrading treatment, slavery and unfair trial
are strictly prohibited even during national or public emergencies such
as the Covid-19 pandemic.76
59
Constitution of Kenya, A 43(a).
60
Health Act 2017.
61
Constitution of Kenya, A 26.
62
Constitution of Kenya, A 29(a)&(b).
63
Constitution of Kenya, A 29(d), (e) & (f).
64
Constitution of Kenya, A 27.
65
Constitution of Kenya, A 28.
66
Constitution of Kenya, A 31.
67
Constitution of Kenya, A 33.
68
Constitution of Kenya, A 35.
69
Constitution of Kenya, A 36.
70
Constitution of Kenya, A 37.
71
Constitution of Kenya, A 39.
72
Constitution of Kenya, A 32.
73
Constitution of Kenya, A 50.
74
Constitution of Kenya, A 51.
75
Constitution of Kenya, A 43.
76
Constitution of Kenya, A 25. Even in instances where derogation is allowed, such should be
based on the law, reasonableness, necessity and justification.

15
 In terms of policing, the Constitution has notably integrated the rule of
law and human rights as principles of national security.77 The National
Police Service, the main enforcement agency of the measures against
Covid-19 pandemic, is required to practice professionalism, comply with
constitutional standards of human rights and fundamental freedoms,
and respect human rights and fundamental freedoms and dignity.78 This
is important in fostering and promoting public trust and confidence in
NPS. The importance of respect for the rule of law and human rights is
further demonstrated in the establishment of police oversight institu-
tions. The main institutions in this regard NPSC,79 KNCHR80 and IPOA.81
These are complemented by the Internal Affairs Unit (IAU) which is a
semi-autonomous department within NPS tasked with the responsibili-
ty of investigating public complaints against the police.82

The constitutional principles and standards for policing by NPS have

been restated in the National Police Service Act which provides that
NPS is subject to the law, including the Bill of Rights in the performance
of duties and exercise of powers.83 Further, it re-enacts the prohibition
of torture or cruel treatment and creates sanctions for breach of this
obligation.84 A more comprehensive framework is found under the
Prevention of Torture Act which prohibits torture, cruel and inhuman
77
Constitution of Kenya, A 238(2)(b).
78
Constitution of Kenya, A 244.
79
NPSC is established under Articles 246 and 248(1) of the Constitution of Kenya and the Na-
tional Police Service Commission Act (Chapter 185C of the Laws of Kenya) to, inter alia, exercise
disciplinary control over persons serving in the Service.
80
KNCHR is empowered under section 12 of the Prevention of Torture Act to investigate and
take remedial action on complaints of torture, cruel, inhuman or degrading treatment or pun-
ishment.
81
IPOA is established under the Independent Oversight Policing Authority Act 2011 to, inter alia,
monitor police operations that affect the public, and investigate complaints related to disci-
plinary and criminal offences committed by any member of NPS, including deaths or injuries
occasioned by acts of police officers.
82
The Internal Affairs Unit is established under section 87 of the National Police Service Act,
Chapter 84 of the Laws of Kenya.
83
National Police Service Act, s 49(1).
84
A police officer who commits torture is liable under section 95(2) of the National Police Ser-
vice Act to a penalty of imprisonment for a term not exceeding 25 years; and cruel, inhuman or
degrading treatment is punishable by imprisonment for a term not exceeding 15 years.

16
treatment, and provides for punishment and reparation for violations.85
Remarkably, the Act prohibits immunity or amnesty to a person accused
of committing torture or cruel, inhuman or degrading treatment or pun-
ishment.86 In the case of enforced disappearances, a limited scope is found
under the Penal Code in relation to abduction and kidnapping87 and the
International Crimes Act insofar as it codifies the provisions of the Rome
Statute on enforced disappearances as a crime against humanity.88

The safeguards extend to the powers of arrests and detention which

must conform to the law and human rights standards,89 and use of force
and firearms. Police officers are required to use non-violent measures
first, and only use force when such measures are ineffective.90 In such
instances, the force used should be proportional to the objective to be
achieved, the seriousness of the offence, and the resistance of the per-
son against whom it is used, and to the extent necessary. The foregoing
principles apply to the use of firearms wherein police officers should
exercise restraint and make every effort to avoid using firearms, espe-
cially against children.91

85
Prevention of Torture Act, 2017, s 5-8.
86
Prevention of Torture Act, s 10.
87
Chapter XXV on offences against liberty under the Penal Code, Chapter 63 of the Laws of
Kenya.
88
International Crimes Act 2008, s 6. It is worthwhile to note that the scope of enforced dis-
appearances is limited under the Act since it applies in the context of crime against humanity
whose ingredients include widespread and systematic commission of an offence against a ci-
vilian population. Single and separate acts of enforced disappearances would, therefore, not
qualify as offences under the Act.
89
National Police Service Act, First Schedule.
90
Part A of the Sixth Schedule of the National Police Service Act, and sections 3 and 4 of the
Service Standing Orders, 2017.
91
National Police Service Act, s 61 and Part B of the Sixth Schedule.

17
 3.0

RESPONDING
TO THE
PANDEMIC: COVID-19
MITIGATION
MEASURES

18
T he declaration of Covid-19 as a pandemic by the WHO on
11 March 2020 coupled with the announcement of the
first case of the virus in Kenya on 12 March 2020 prompt-
ed the Government to institute multifaceted measures. Besides
containing the spread of the virus in the country, the measures
aimed at mitigating the economic effects of the pandemic on the
population, particularly the high-risk groups such as orphans,
elderly and low-income earners. The extra-ordinary measures,
while focusing mainly on the emerging public health emergen-
cy, covered other matters such as public safety, public order and
social protection. Essentially, the Government invoked the Pub-
lic Order Act92, the Public Health Act93 and various tax laws in
instituting the measures.

3.1 Containment Measures

In the first place, the declaration of Covid-19 as a formidable epidemic
disease by the Ministry of Health under section 35 of the Public Health
Act94 heralded the introduction of policy, legislative and administrative
measures to contain the pandemic in the country. This was followed
by swift, drastic and unprecedented emergency interventions hitherto
experienced in the history of post-independent Kenya. The interven-
tions included the establishment of the national and inter-governmen-
tal co-ordination structures to spearhead, advice and co-ordinate the
actions against the pandemic.95

Broadly, key interventions included improvement of healthcare infra-

structure through enhancement of capacity to handle Covid-19 cases,
recruitment of healthcare personnel, allocation of additional financial
92
Public Order Act (n 10).
93
Public Health Act (n 9).
94
Legal Notice No. 37: Public Health (Declaration of Formidable Disease) Order, 2020, Kenya
Gazette Supplement No. 31, 27 March 2020.
95
The structures included the National Emergency Response Committee on Coronavirus, Na-
tional Co-ordination Committee on the Response to the Coronavirus Pandemic, the Covid-19
Emergency Response Fund and Sectoral Working Groups with County Governments.

19
 resources, and setting-up of containment and treatment protocols. In the
policy and legal spheres, rules and regulations with far-reaching implica-
tions on the Bill of Rights were enacted to complement the healthcare
system related measures. Notably, the rules and regulations included the
imposition of a dusk-to-dawn curfew from 27 March 2020;96 restriction
of movement in and out of Kenya from 25 March 2020 except for cargo
flights and trucks;97 restriction of movement in and out of certain ar-
eas with high Covid-19 infection rates,98 mandatory wearing of masks in
public spaces;99 and suspension of public and social gatherings,100 direc-
tives to work from home, social distancing, hand washing and restriction
on transport services.101 Other measures were suspension of learning in
all education institutions,102 closure of some businesses and premises
such as bars, cinemas, dine-in restaurants and food courts, night clubs,
theatres, casinos, golf clubs and entertainment joints;103 and mandatory

96
Legal Notice No. 36: Public Order (State Curfew) Order, 2020, 25 March 2020.
97
Presidential address to the nation on Covid-19 on 15 March 2020.
98
The restriction of movement commenced on 6 April 2020 in regards to Nairobi Metropolitan
Area vide Legal Notice No. 51: Public Health (Covid-19 Restriction of Movement of Persons and
Related Measures) (Nairobi Metropolitan Area) Order, 2020; and from 8 April 2020 in Mombasa
County vide the Legal Notice No. 52: Public Health (Covid-19 Restriction of Movement of Per-
sons and Related Measures) (Mombasa County) Order, 2020; Kilifi County vide the Legal Notice
No. 53: Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) (Kilifi
County) Order, 2020; and Kwale County vide the Legal Notice No. 54: Public Health (Covid-19
Restriction of Movement of Persons and Related Measures) (Kwale County) Order, 2020. Fur-
ther restriction of movement was imposed in Mandera County from 22nd April 2020 vide the
Legal Notice No. 71: Public Health (Covid-19 Restriction of Movement of Persons and Related
Measures) (Mandera County) Order, 2020; Eastleigh Area in Nairobi from 6th May 2020 vide the
Legal Notice No. 83: Public Health (Covid-19 Restriction of Movement of Persons and Related
Measures) (Eastleigh Area) Order, 2020; and Old Town in Mombasa from 6th May 2020 vide the
Legal Notice No. 84: Public Health (Covid-19 Restriction of Movement of Persons and Related
Measures) (Mombasa Old Town) Order, 2020.
99
Legal Notice No. 50: Public Health (Covid-19 Restriction of Movement of Persons and Related
Measures) Rules, 2020, Kenya Gazette Supplement No. 41, 6 April 2020.
100
Legal Notice (n 96).
101
The Rules required Public Service Vehicles to carry not more than 50 percent of their licensed
capacities. See Legal Notice No. 138: Public Health (Covid-19 Operations of Public Service Vehi-
cles) Rules, 2020, Kenya Gazette Supplement No. 134, 24 July 2020.
102
Presidential address to the nation on Covid-19 on 15 March 2020.
103
Legal Notice No. 56: Public Health (Covid-19 Restriction of Movement of Persons and Related
Measures) Variation Rules, 2020, Kenya Gazette Supplement No. 43, 14 April 2020.

20
quarantine for persons infected or suspected to have been in contact
with an infected person.104

In order to cushion the public and businesses from the economic effects
of the pandemic, the Government introduced fiscal incentives mainly in
the form of tax reliefs. These included 100 percent tax relief for people
earning gross monthly income of up to Sh24,000, reduction of income
tax rate from 30 percent to 25 percent, reduction of residence tax from
30 percent to 25 percent, reduction of turnover tax rate from three
percent to one percent for all micro, small and medium enterprises,
and reduction of value added tax rate from 16 percent to 14 percent.105
Other measures were temporary suspension of listing with credit refer-
ence bureaus, payment of at least Sh13 billion of verified pending bills,
and expeditious payment of all verified value added tax refund claims
amounting to Sh10 billion. In terms of social protection, an additional
Sh10 billion was appropriated to the elderly, orphans and other vulnera-
ble members of society through cash transfers, and introduction of Kazi
Mtaani programme to support the youth across the country.

In relation to administration of justice, the National Council on the

Administration of Justice made a raft of interventions to respond to
the pandemic while maintaining access to justice. Key interventions
included scaling down of the physical operations of the judiciary for
two weeks from 15 March 2020 in line with the recommendations of
the National Emergency Response Committee on Coronavirus, issu-
ance of cash bail or free police bond to petty or traffic offenders at
police stations within 24 hours of arrest, arraignment of suspects in
court within 24 hours of arrest, decongestion of prisons through re-
view and revision of bail and bond terms for petty offenders or those
who had less than six months to complete their jail terms, suspension
of prison visits, isolation of new inmates and restriction of movement
104
Legal Notice No. 49: Public Health (Prevention, Control and Suppression of Covid-19) Rules,
2020, Kenya Gazette Supplement No. 39, 3 April 2020.
105
Government of Kenya (n 7). The introduction of these changes entailed the amendment of
several tax laws through the Tax Laws (Amendment) Act, 2020, No. 2 of 2020.

21
 of inmates to reduce the risk of infection, and suspension of execution of
warrants of arrest, court decrees and orders made before 15 March 2020.106

In order to enhance transparency and accountability, the police were

required to establish a centralised record showing the number of peo-
ple arrested and handled in all police stations and the terms of their
release on bail or bond. The record was to be monitored regularly by
the Office of the Director of Public Prosecutions and periodic reports
submitted to the Council for consideration. In line with the resolution
of the Council, the Inspector General of Police issued guidelines on 27
March 2020 instructing station heads to grant police bonds to persons
detained at police stations, where appropriate, to prevent the risk of
spread of coronavirus. The measures were reviewed from time to time
with the Council in its subsequent meetings upscaling the operations
of the courts and adopting the electronic case management in judicial
proceedings.107 It should be noted that some of these measures were
later relaxed as the Government sought to re-open the economy.108
106
National Council on the Administration of Justice, ‘Administrative and Contingency Manage-
ment Plan to Mitigate Covid-19 in Kenya’s Justice Sector’ (15 March 2020) <https://www.judiciary.
go.ke/ download/press-statement-administrative-and-contingency-management-plan-to-mit-
igate-covid-19-in-kenyas-justice-sector/> accessed on 11 March 2021. It is worth noting that the
review of the jail terms by the High Court led to the release of 4,800 inmates in the first two
weeks of the interventions.
107
National Council on the Administration of Justice, ‘Statement on Justice Sector Operations in
the Wake of the Covid-19 Pandemic’ (1 April 2020) <file:///C:/Users/HP/Downloads/NCAJ%20
Statement%20Final %20-%20April%20%20%201-1.pdf>, accessed on 11 March 2021; ‘Continu-
ing Review of Justice Sector Operations in the Wake of Covid-19 Pandemic’ (15 April 2020)
<file:///C:/Users/HP/Downloads/NCAJ%20 Statement%20April%202020.pdf> accessed on 11
March 2021; and ‘Judiciary to Upscale Justice Delivery through Increased use of Technology’ (21
April 2020) <file:///C:/Users/HP/Downloads/NCAJ%20 Statement %20April%2021,%202020.
pdf>, accessed on 11 March 2021. The adoption of the measures was complemented by the Prac-
tice Directions on Electronic Case Management issued by the Chief Justice on 20 March 2020
to guide the integration of information, communication and technology in judicial proceedings.
108
Some of the measures that were relaxed were domestic and international flights which com-
menced on 15 July 2020 and 1 August 2020; and religious and social gatherings which were
allowed subject to adherence to the protocols on social distancing, wearing of masks and hand
washing. The restriction of movement in Kilifi County, Kwale County, Mombasa Old Town and
Eastleigh Area in Nairobi ended on 7 June 2020 while that for Nairobi Metropolitan, Mombasa
and Mandera Counties ended on 7 July 2020. However, the nationwide curfew remained as were
other public health measures such as social distancing, wearing of masks and hand washing.

22
23
 4.0

TWIN CRISES: THE PAIN

OF POLICE BRUTALITY
IN THE FACE OF THE
PANDEMIC

24
T he already heart-wrenching story of the Covid-19 pandem-
ic in Kenya is peppered with reports of deaths unrelated to
the deadly virus. Deaths of civilians caused by those man-
dated to protect their lives and, ironically, in a cause designed
to slow down the virus to save lives. But that is not all; there
are scores of people whose lives can never be the same again.
Those injured, those maimed, and those whose memories carry
the imprints of the pain inflicted on them or their loved ones. In
effect, policing during the pandemic in itself became a problem,
no longer a mitigation strategy.
It is not in doubt that policing exacerbated violation of human rights
during the Covid-19 pandemic. Right from the onset when the Gov-
ernment instituted measures to slow the spread of the virus in March
2020, there was an outcry over the disproportionate use of force by po-
lice officers in the implementation of the containment measures. This
spurred widespread criticism of Government approach in handling the
pandemic, especially the earlier interventions. Particularly, there was
disapproval of the Government’s policy to securitise handling of the
pandemic. IMLU, for example, noted the failure by the police to appre-
ciate that Covid-19 posed more of a public safety risk than a security
risk hence the need to employ policing measures more amenable to
reducing the risks that appertain to public safety.109 Similarly, Haki Afri-
ca noted that the police failed to enforce the regulations and instead
used them to ‘harass, intimidate, torture and even kill Kenyans’.110 Kamau
Wairuri attributed this to strategy failure on the part of Government
where Covid-19 crisis was made more of a law enforcement issue rather
that a public health issue. He urgued that had the Government treat-
ed Covid-19 as a public health crisis, the first response would have
involved mass testing and education to reduce the risk of transmis-
sion, and diverting resources to facilitate new behaviour change.111
109
IMLU Status Report, ‘The situation of human rights protection in the measures to combat
Covid-19 pandemic’ (4 June 2020).
110
Hussein Khalid, ‘Securitising Covid-19 regulations enforcement misplaced’ The Star (14 No-
vember 2020) <https://www.the-star.co.ke/siasa/2020-11-14-securitising-covid-19-regula-
tions-enforcement-misplaced/> accessed on 6 January 2021.
111
Kamau Wairuri, ‘Kenya: We cannot police ourselves out of pandemic’ African Arguments (3
June 2020) <https://africanarguments.org/2020/06/kenya-we-cannot-police-ourselves-out-of-
the-pandemic /> accessed on 3 January 2021.

25
 Indeed, the techniques deployed to promote behaviour change were
critical in determining the effectiveness of the interventions. Force and
fear failed to work. In fact, a report by the Anadolu Agency demonstrat-
ed that excessive use of power by the police was counterproductive.
The report published on 16 April 2020 noted that people wore masks
out of fear of law enforcers,112 a testament that fear-induced change is
unsustainable. A similar observation was made by IMLU which continu-
ally urged the police to adopt community policing in the enforcement
of the containment measures.113

State and non-state bodies reported receiving complaints that con-

firmed abuse of power by the police in contravention of the law. For
instance, KNCHR had by 27 April 2020 registered 117 complaints relating
to the pandemic out of which 66 related to use of excessive force by the
NPS.114 The figure had risen to 220 complaints by 6 June 2020.115 Similarly,
IPOA reported receiving 93 (21 of them relating to death) complaints
against police officers enforcing the by 22 September 2020. Non-state
human rights bodies including IMLU, Haki Africa, Kenya Human Rights
Commission and Article 19 Eastern Africa reported receiving complaints
relating to police excesses and other human rights violations. IMLU, for
instance, received 68 complaints – 25 relating to extra-judicial execu-
tions and 43 on torture and cruel treatment - mainly by the police.

The widespread abuse of power by the police negated the claim by

the Police Spokesperson Charles Owino that the atrocities pointed to
few instances of young overzealous officers.116 As evident in the various
reports by different organisations including the media, unjustified use

112
Andrew Wasike, ‘Kenya police kill during curfew than COVID-19’ Anadolu Agency (16 April 2020)
<https://www.aa.com.tr/en/africa/kenya-police-kill-more-during-curfew-than-covid-19/1807930>
accessed on 6 June 2021.
113
IMLU Status Report (4 June 2020) (n 109); and Petition to the Inspector General of Police (n. 12).
114
KNCHR (29 April 2020) (n 12).
115
KNCHR (June 2020) (n 12).
116
Citizen Digital, 3 June 2020, Charles Owino comments on police brutality during interview,
available at <https://citizentv.co.ke/news/charles-owino-defends-police-brutality-saying-of-
ficers-are-young-and-drunk-in-power-334572/> accessed on 11 March 2021.

26
 of excessive force during the period under review was widespread and
pointed to underlying systemic problems in policing. This led to the need
for accountability for police excesses and adoption of human rights based
approach to policing in the enforcement of the containment measures.117

Constitution of Kenya, 2010

Objects and functions of the National Police Service

Article 244: The National Police Service shall –
(a) strive for the highest standards of professionalism and discipline
among its members;
(b) prevent corruption and promote and practice transparency and
accountability;
(c) comply with constitutional standards of human rights and
fundamental freedoms;
(d) train staff to the highest possible standards of competence and
integrity and to respect human rights and fundamental freedoms
and dignity; and
(e) foster and promote relationships with the broader society.

The subsequent sections provide highlights of the excesses of the po-

lice during the period under review. The sections feature incidences of
police brutality which demonstrate human rights breaches during en-
forcement of Covid-19 measures. The examples presented give attention
117
For instance, IMLU, Police Reforms Working Group – Kenya and KNCHR released statements
calling for action against the police and adoption of human rights based approach to policing.
Further, IMLU petitioned the Inspector General of Police, African Commission on Human and
People’s Rights and the UN Special Rapporteur on Extra-Judicial, Summary or Arbitrary Execu-
tions detailing police excesses and calling for accountability. See (n 12); and IMLU, Letter to the
UN Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions: and Letter to the
African Commission on Human and People’s Rights, ‘Status of torture and extra-judicial execu-
tions in Kenya during the Covid-19 period’ (29 May 2020).

27
 to extra-judicial executions, and torture and cruel treatment. It is im-
portant to note that although the three areas were the focus of the
study, available data was not necessarily classified as such and the re-
searchers had to interpret the data and determine the classification.
It is also worth noting that IPOA, as a matter of policy, did not follow
the classification. The Authority while providing data to the research-
ers asserted that ‘IPOA disassociates with the term extra-judicial execu-
tions because the act of executing suspects outside the judicial system
is not legal in Kenya.’

4.1 Torture and Cruel Treatment

As already stated, it is not in question whether or not policing exacer-
bated violation of human rights. Torture and cruel treatment charac-
terised police action with most incidents of the excesses concentrated
between March to June 2020. Most human rights violations reported
related to unlawful, arbitrary and excessive use of force and firearms
in the implementation of the dawn-to-dusk curfew in blatant violation
of the law, particularly the UN minimum standards on use of force and
firearms, the Constitution of Kenya 2010, National Police Service Act
2011, Prevention of Torture Act 2017 and the NPS Standing Orders 2017.

National Police Service Act

95 Prohibition against torture or cruel treatment

(1) It shall be unlawful for a police officer to subject any person to
torture or other cruel, inhuman or degrading treatment.
(2) A police officer who subjects a person to torture commits a
criminal offence and shall be liable on conviction to imprisonment
for a term not exceeding twenty five years.
(3) A police officer who subjects a person to cruel, inhuman or degrad
ing treatment commits a criminal offence and is liable on
conviction to imprisonment for a term not exceeding fifteen years.

28
 Prevention of Torture Act
Offence of torture
5(1) Any person who tortures another person commits an offence and
shall be liable, on conviction, to imprisonment for a term not ex
ceeding twenty five years.
(2) If as a result of torture referred to under subsection (1) the victim
dies, the person is liable, on conviction, to imprisonment for life.

No justification for torture

6(1) No exceptional circumstances, including –
(a)a state of war or a threat of war;
(b)internal political instability; or
(c)a public emergency,
may be invoked as justification of torture or cruel, inhuman or
degrading treatment or punishment.
(2)…
(3)…

No immunity or amnesty
10. There shall be no immunity or amnesty granted to a person accused
of the offence of torture or cruel, inhuman or degrading treatment
or punishment.

The first portrayal of impunity that captured the imagination of the en-
tire nation would have to be the Likoni Ferry terminus incident on the
first night of the nation-wide dusk-to-dawn curfew on 27 March 2020.
Not just because it was gruesome, but because of the wide media cov-
erage. Not even the full glare of cameras could tone down the savagery
of law enforcers. If anything, journalists too became victims of their
inhuman treatment. The usually busy terminus had crowds of commut-
ers waiting as the ferry was operating in low capacity in line with the
Covid-19 containment measures.

29
 As early as two hours before curfew, armed police descended on unsus-
pecting men, women and children. They lobbed teargas on the crowd
and started beating them indiscriminately using batons, gun-butts as
well as kicks and blows. The police then forced commuters to lie on
the ground next to each other, bundled together, in total disregard of
the physical distancing directive. The incident was not only in the very
negation of human rights principles but also in the exact measures de-
signed to tame the spread of the virus. Dozens were injured and humil-
iated.118 As evident from the media clips, the police did not wear any
protective gear, thereby posing a risk to the commuters and themselves.

Following widespread public condemnation of police conduct, Presi-

dent Uhuru Kenyatta apologised to Kenyans for the excesses even as
he reiterated that it was imperative to enforce the law.119 Nevertheless,
he neither condemned the violence nor committed to accountability
for the violations. The Government later ordered employers to release
their non-essential staff by 4.00 pm during the curfew to enable them
get home in good time.

Monitoring of police action and the human rights impact of the pan-
demic by different bodies provide startling findings. The common
thread in the monitoring reports was gross violation of human rights
throughout the country arising from torture, cruel or ill-treatment and
shootings by the police.

Monitoring by IMLU, for instance, revealed gross and widespread vio-

lation of human rights mainly by the police with most of the victims
having been shot or beaten to death or sustained serious injuries.120
The extent of police brutality was further confirmed by the results of
the postmortem examinations conducted by the organisation which
118
NTV Kenya (n 11).
119
Citizen TV, ‘President Kenyatta apologises over police brutality during curfew’ (1 April 2020)
<https://www.youtube.com/watch?v=wCtQyDdQ8cc> accessed on 6 January 2021.
120
IMLU Status Reports, ‘The situation of human rights protection in the measures to com-
bat Covid-19 pandemic’ (8 April 2020, 20 April 2020 and 4 June 2020).

30
revealed that the deaths of the victims had been caused by police
shooting or beating. It is worth noting that most of the victims were
male in their prime ages which demonstrates the socio-economic im-
pact of police brutality on the affected families.
Similarly, a survey by Human Rights Watch (HRW) – an organisation that
monitors human rights violations – conducted on the phone with 26
witnesses, relatives, and victims of abuses related to the curfew in sev-
en counties (Nairobi, Mombasa, Kwale, Busia, Kakamega, Mandera, and
Homa Bay), revealed grave violations by the police. Noting that the po-
lice enforced the curfew chaotically and violently, HRW observed that
police arrested people in the streets of downtown Nairobi, ‘whipping,
kicking, and herding them together’. In the same vein, the organisation
reported that police officers forced a group of people walking home
from work to kneel, then whipped and kicked them in Embakasi area of
Eastern Nairobi. Similar accounts of police excesses across the country
included shooting, beating, and extorting money from people. These
observations are consistent with the nature of complaints lodged with
IPOA. As at 22 September 2020, the complaints filed with IPOA were
categorised as captured in the matrix below.

Nature Number of Complaints

Fatal assault and/ or shooting 21
Shooting and serious injury 12
Rape (sexual assault) 1
Assault and serious injury 29
Assault and injury 14
Teargas poisoning (victim survived) 1
Assault 10
Robbery with violence 3
Unlawful arrest and unfair treatment 2
Source: IPOA
31
 Further, HRW reported that the police beat and shot at people in Busia
and Kakamega counties resulting in death and serious injuries. In one
such case in Kakamega County, police enforcing a ban on the open-air
market arrived in trucks at the market in Mumias at around midday on 1
April 2020 and began beating, kicking, and shooting at traders. Accord-
ing to witness accounts, Idris Mukolwe, a 45-year-old tomato vendor,
died from being hit with a teargas canister police threw at him. It was re-
ported that one teargas canister hit Mukolwe and exploded in his face.
He started suffocating but his colleagues could not offer any help as
the police kept throwing tear gas at them compelling them to run away.
A postmortem examination of the body conducted by IMLU confirmed
that indeed the police were responsible for the death of the Mukolwe.121
In yet another incident, police shot a 24-year-old trader Grace Muhati
with live ammunition on 30 March 2020. She was rushed to the county
referral hospital, where doctors removed two bullets from her body.
Further, HRW confirmed four more deaths by police in Kakamega, Homa
Bay and Kwale counties.122

It is interesting to note that journalists who were categorised as essen-

tial service providers, thus exempted from the curfew, suffered police
brutality while undertaking their work. Article 19 East Africa noted that
journalists who were covering police excesses were targeted in at least
seven cases, even where they had identified themselves with requisite
documents visibly marked press or essential service workers. The or-
ganisation further noted that attacks against journalists in general had
more than doubled to 48 between 12 March (with 22 of the violations
happening in March and April) and 31 August 2020 up from 20 between
October 2019 and March 2020.123

121
IMLU Status Report (20 April 2020) (n 120).
122
Human Rights Watch, ‘Kenya: Police brutality during curfew’ (22 April 2020) <https://www.
Hrw. org/news/2020/04/22/kenya-police-brutality-during-curfew> accessed on 6 January 2021.
123
Article 19 East Africa, ‘Kenya: Journalists attacked and silenced during COVID-19 pandemic’
(30 September 2020) <https://www.article19.org/resources/kenya-journalists-attacked/> ac-
cessed on 6 January 2021.

32
Not even frontline workers were exempt from police brutality. Hillary
Kirui, a clinical officer attached to Tenwek Mission Hospital was shot
during curfew on 20 May 2020. The Standard reported that the bullet
hit him on the back of his right leg and exited on the front, leaving a
gushing wound.124 His sister Cheptoo said they rushed to the scene and
found their brother lying on the ground in pain. Kirui was on his way
home from work, but an officer attached to Cheborgei Police Station
claimed he was roaming the area aimlessly during curfew. Bureti Officer
Commanding Police Division Felicien Tengeye said a stray bullet hit the
medic. Tengeye explained that police officers shot in the air to disperse
a rowdy group of youth at Cheborgei Centre who were defying police
orders to go home after curfew hours when Kirui got shot accidentally.
Kirui was rushed to Litein Mission Hospital and later transferred to Ten-
wek Mission Hospital.
The Voice of America documented the story of an eighteen-year-old
Ibrahim Onyango who worked at the Dandora dumpsite in Nairobi, col-
lecting plastics for recycling. Onyango worked all day at the dumpsite
without radio or television thus it was likely he missed the announce-
ment of curfew. Together with his friend they encountered police on
their way home on 29 March 2020 at around 7.30 pm. The police sought
to know where they had come from and then started to beat them. He
managed to escape in between the beatings and got to his house. The
sister reported that Ibrahim was bleeding, one of his ears was hanging
and he had deep wounds on his head. He did not manage to escape
death; he died two days later.125
In yet another incident, Hamisi Juma Mwadungudu, a motorcycle taxi
(boda boda) operator aged 48, died on 29 March 2020 at the Msambweni
124
Nikko Tanui, ‘Police shoot and injure medic caught outside during curfew’ The Standard (21
May 2020) <https://www.standardmedia.co.ke/amp/rift-valley/article/2001372195/police-
shoot-and-injure-medic-caught-outside-during-curfew> accessed on 6 January 2021.
125
Rael Ombuor, ‘Kenyan police accused of killings, excessive force while enforcing COVID-19
curfew’ VOA (23 April 2020) <https://www.voanews. com/ africa/kenyan-police-accused-kill-
ings-excessive-force-while-enforcing-covid-19-curfew#:~:text=NAIROBI%20%2D%20Rights%20
groups% 20in%2Kenya,more%20with%20life %2Dthreatening%20injuries> accessed on 6 Janu-
ary 2021.

33
 Referral Hospital from injuries that he sustained from police beating.
Mwadungudu was on his way home on 27 March 2020 after rushing a
pregnant woman to a Likoni hospital at about 8 pm when he encoun-
tered the police. A postmortem examination revealed that he died from
perforated intestines due to blows by a blunt object. The perforation
allowed waste to enter vital organs in his body, causing failure of the
organs. Unfortunately, Mwadungudu could not get immediate medical
attention as his family could not take him to a hospital due to the cur-
few. Commenting on the incident, the Governor of Kwale County, Salim
Mvuria, condemned the police excesses saying enforcing the curfew did
not necessarily mean brutalising offenders.126 But it appeared from the
many instances reported that many officers understood ‘enforcement’
to mean brutality.
Mwadungudu’s story had striking similarities with Hamisi Juma Mbega’s,
a former General Service Unit officer. Mbega reportedly succumbed to
injuries sustained in a beating by police officers enforcing the curfew in
Matuga Sub-County. He died on 29 March 2020 at Msambweni Hospital,
where he was undergoing treatment. Mbega had ventured into the boda
boda business following his dismissal from the police service. On the
fateful day of 27 March 2020, Mbega had dropped a woman in labour at
Likoni District Hospital and was carrying another passenger on his way
home when he encountered the police shortly after 7 pm at Mkunazini
in Ujamaa. His son Imani Hamisi confirmed the father sustained severe
injuries on his private parts, stomach and chest after being beaten with
batons and gun butts.

Additionally, Hamisi said his father, before dying, told him that he was
hit on the head by five General Service Unit officers. Consequently, he
lost control of his motorcycle and landed in a ditch filled with water.
Hassan Kitosha, Mbega’s passenger at the time of the attack, corroborat-
ed the claims adding that he pleaded for mercy after they fell into the
126
Brian Orieno & Shaban Oma, ‘Boda boda rider died from perforated intestines after police
beating’ The Star (30 March 2020) <https://www.the-star.co.ke/news/2020-03-30-boda-boda-
rider-died-from-perforated-intestines-after-police-beating/> accessed on 6 January 2021.

34
ditch and managed to escape. Matuga Sub-County police commander,
Francis Nguli, reportedly acknowledged, but said nobody had lodged a
report related to the incident at the station.127

A similar scene was unfolding in Migori that very night. The stage was
Kosele Trading Centre, Rachuonyo South Sub-County. Calvince Omon-
di, a boda boda rider died on 28 March 2020 at Rachuonyo South
Sub-County Hospital in Oyugis town where he was undergoing treat-
ment. His father George Onyango said he got a report that police of-
ficers assaulted his son and later took him to hospital in a police car.
Omondi had gone to Kendu-Bay town in the neighbouring Rachuonyo
North Sub-County to drop a passenger. He was on his way back when
the police assaulted him near Kosele Trading Centre in Rachuonyo
South Sub-County.
Onyango, who said his son arrived at the hospital unconscious, won-
dered why the police did not discipline his son in a manner that could
not have caused death. He said the death left him with a substantial
financial burden. An expectant widow and one child survived his son.
Rachuonyo South Sub-County Police Commander Esau Ochorokodi
said the rider’s death resulted from an accident while escaping from the
police who were on patrol.128

It appears police officers were overzealous about enforcement of cur-

few. According to The Star, police enforcing, curfew hurled teargas can-
isters into the home of Bernard Orenga in Nambale before storming the
homestead to beat him, his wife and children. The officers also beat
up his neighbours during the incident that happened at 7.15 pm on 30
March 2020. This incident was confirmed in the monitoring exercise by
IMLU which provided counseling to the family and called for action

127
James Omoro and Irissheel Shanzu, ‘Two boda boda riders killed as police officers enforce
curfew’ The Standard (30 March 2020) <https://www.standardmedia.co.ke/amp/nyanza/arti-
cle/2001366167/ two-boda-boda-riders-killed-as-police-officers-enforce-curfew> accessed on
6 January 2021.
128
Ibid.

35
 against the culprits.129 On 21 January 2021, more than nine months later,
the Director of Public Prosecutions Noordin Haji announced criminal
charges against the officers involved in the incident. They included 15
police officers, six Busia county enforcement officers, and the Ward
Commander who led the operation.130However, in an interesting twist
of events, the ODPP withdrew charges against the suspects one week
later without giving any reason or justification. IMLU and CSOs under
the Police Reforms Working Group - Kenya protested the move and
demanded accountability.131 By the time of publishing this report, ODPP
was yet to give justification for that action.

Not only did people die from bullets and wounds inflicted by the po-
lice, the mere fear of police brutality drove some to their death. A case
in point was a boda boda rider travelling to Isiolo but died on the spot
after a head-on collision with a lorry at Maili Saba in Meru County. Ac-
cording to witness accounts, the man was running away from the police.
A fellow boda boda rider who was behind him told the media that his
counterpart had stopped to drop a passenger but as he rejoined the road,
a police car that was pursuing them had parked in the middle of the road
to block them. While trying to evade the police vehicle, he was hit by
an oncoming lorry at about 8.30 pm. The report further stated that the
police allegedly barred residents who rushed to the scene after hearing
a bang from proceeding to location of the body. The police on their part
said the rider rammed into a lorry as he was joining the highway from
a feeder road. They further said the incident happened at around 6.30
pm, outside curfew hours contrary to the witnesses’ account. A similar

129
IMLU Status Report (20 April 2020) (n 120), and Petition to the Inspector General of Police
(n 12).
130
Gordon Osen, ‘15 officers, their boss be charged for curfew beatings’ The Star (21 January
2020) <https://www.the-star.co.ke/news/2021-01-21-15-officers-their-boss-be-charged-for-
curfew-beatings/> accessed on 21 January 2021.
131
Police Reforms Working Group-Kenya, ‘The return of the dark days: ODPP withdrawal of
case against 15 police officers and six county enforcement officers’ (2 February 2021) <https://
www.imlu.org/index. php/shortcode/reports/send/2-resource-center/102-the-return-of-
the-dark-days-odpp-withdrawal-of-the-case-against-15-police-officers-and-6-county-en-
forcement-officers> accessed on 17 March 2021.

36
incident occurred a day earlier when another boda boda rider reportedly
died in Isiolo town after he rammed into a stationary lorry as he ran away
from police officers who were allegedly beating him up. Isiolo Sub-Coun-
ty Police Commander George Kariuki denied that such an incident was
reported on the material night even as residents of Isiolo decried police
harassment during curfew enforcement.132

4.2 Extra-Judicial Executions

Various actors documented deaths attributed to police action but it

was difficult to ascertain the number of people killed or those who
died as a result of police brutality. This was partly because there is no
central database for accessing such information. Instead, various over-
sight bodies, human rights organisations as well as the media all docu-
mented cases independently. This challenge was intensified by lack of
access to information on the subject as a number of governmental bod-
ies responsible for police oversight remained largely opaque. The other
difficulty in determining the exact number had to do with reporting.
Other than the cases where execution was instantaneous, there were
those who lost their lives later as a consequence of injuries inflicted.
It is also imperative to note that there was no consensus among key
actors, on what constituted extra-judicial executions.

According to HRW, at least six people died from police violence during
the first 10 days of the curfew.133 This was in tandem with IMLU’s find-
ing that six people had lost their lives in the hands of the police in
the first two weeks of the curfew.134 A month after the introduction
of the curfew, KNCHR reported receiving seven complaints in respect
to deaths caused by assault, torture and excessive use of force by the

132
Waweru Wairimu, ‘Kenya: Boda boda rider fleeing from police dies in road collision’ allAfrica
(29 March 2020) <https://allafrica.com/stories/202003300066.html> accessed on 6 January
2021.
133
Human Rights Watch (n 122).
134
IMLU Status Report (8 April 2020) (n 120).

37
 police.135 Police conduct had become more problematic than the pan-
demic itself that the Anadolu Agency carried a story in April 2020 with
the headline ‘Kenya police kill more during curfew than COVID-19’. The
New York Review also aptly captured Kenya’s sick response to the pan-
demic with a headline that read ‘Kenya Turns Its Covid Crisis into a Hu-
man Rights Emergency’. 136 As aforestated, various organisations in Kenya
raised concerns regarding police brutality in enforcing the containment
measures are called for police accountability.137

The joint monitoring of the impact of Covid-19 in informal settlements

by OHCHR and the Social Justice Centres Working Group documented
10 deaths – Kakamega (4), Nairobi (3), Kiambu (2) and Vihiga (1) coun-
ties – between 15 April to 6 May 2020.138 Whereas one person died as a
result of shooting, nine died as a result of beatings. The report further
stated that an asthmatic woman died in her house as a result of suffo-
cation after police fired teargas in a residential area in Kibera.

As it appears from an incident in Lessos, Nandi County, wearing a mask

was a matter of life and death. Not just because of its potential to save
one from the highly communicable Coronavirus, but also from a police
bullet. A 40-year-old cobbler Lazarus Tirop paid the ultimate price for
intervening in a conflict relating to a mask. It was reported that a police
officer demanded a Sh50 bribe from a boda boda rider who was not
wearing a mask prompting Tirop to intervene. As the argument ensued,
the officer shot him on the head at close range, killing him instantly.139
The incident triggered riots where two more men were shot dead and
property belonging to police destroyed. A statement on the incident

135
KNCHR (29 April 2020) (n 12).
136
April Zhu, ‘Kenya turns its Covid crisis into a human rights emergency’ (6 June 2020) <https://
www.nybooks.com/daily/2020/07/22/kenya-turns-its-covid-19-crisis-into-a-human-rights-
emergency/> accessed on 6 January 2021.
137
See (n 12).
138
OHCHR and the Social Justice Centres Working Group, ‘Kenya: Monitoring human rights
impacts of Covid-19 in informal settlements: 15 April to 6 May 2020 (2020).
139
BBC, ‘Coronavirus in Kenya: Police kill three in motorcycle taxi protest’ (26 June 2020)
<https://www.bbc.com/news/world-africa-53191358> accessed on 6 January 2021.

38
from the NPS stated the matter had been referred to IPOA for action.140
However, accountability in this incident was doubtful following the
mass transfer of all police officers from the station immediately after
the incident.141

In yet another case, Maurice Ochieng’, a carpenter, suffered fatal inju-

ries from police beating for not wearing a mask at his workshop in Holo
Market, Kisumu County.142 Ochieng’ had been arrested and beaten at his
workshop on 20 May 2020 before being taken to Maseno Police Station
where he was released when his condition worsened. Four days after
his release, he collapsed at his workshop and subsequently rushed to
Kombewa District Hospital where he was pronounced dead on arrival.
His brother, Newton Ogola who was with him when he collapsed, said
that Ochieng’ writhed in pain before he collapsed while clutching his
chest. The Medical report at the Hospital indicated that he had bruis-
es on the head and chest. While confirming the arrest, Kisumu West
police boss Edward Kawangara said that an inquest file for inquiry into
Ochieng’s death had been opened, and blamed the family for not re-
porting the claim of police brutality as soon as he was released.

In another bid to enforce Covid-19 measures, a policeman shot a busi-

nessman at Rioma market in Kisii town on 6 July 2020. It was reported
that the police accused the man of allegedly selling fake hand sanitis-
ers and masks. A police officer shot him after an argument triggering a
protest the following day. Over 100 angry protesters set Rioma Police
Station, where the police officer was based, on fire but the fire was
later put out before it could spread. Kisii County Police Commander
140
OfficeoftheInspectorGeneral,‘LessosShootingIncident’(25June2020)<https://twitter.com/NPS Offici-
alKE/status/1276195841687130112?refsrc=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwter-
m%5E1276195841687130112%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2F2.zoppoz.workers.dev%3A443%2Fhttps%2Fwww.
aljazeera.com%2Fnews%2F2020%2F6%2F26%2Fthree-people-shot-dead-by-kenyan-police-at-
protest> accessed on 6 January 2021.
141
Citizen TV, ‘All police officers transferred from Lessos Police Station’ (26 June 2020) <https://
www.youtube.com/watch?v=quQS6eQeeJk> accessed on 11 March 2021.
142
Mactilda Mbenywe, ‘Man beaten up for not wearing his mask dies’ The Standard (27 May
2020) <https://www.standardmedia.co.ke/nyanza/article/2001372871/man-beaten-up-for-
not-wearing-his-mask-dies> accessed on 11 March 2021.

39
 Jebel Munene confirmed that the officer in question was arrested. Nyan-
za Region Police boss Noah Mwivanda apologised to the public for the
incident and promised that the officer would be charged with various
offences.143 However, due to opaqueness in operations, there was no con-
firmation that action was indeed taken against the concerned officer.
Perhaps one of the youngest reported deaths resulting from excessive use
of force by police was that of Yassin Hussein Moyo who died aged 13. The
life of the teenage boy who had a whole life ahead of him was cut short
when he was struck in the stomach by a stray bullet on the balcony of his
parents’ house at Kiamaiko in Nairobi’s Eastlands area. Moyo bled to death.
The curious Moyo alongside his siblings watched police storm the area us-
ing batons to lash at people who broke curfew. Media reports quoting of-
ficial sources indicated a ricochet accidentally hit the boy as police were
trying to disperse people who had defied the curfew directive.144 A report
of the postmortem examination conducted by IMLU together with other
agencies confirmed the cause of death as shooting by police.145 A sombre
mood still engulfed the home when the researchers visited on 22 January
2020. However, a few metres away from home, his energy still oozes from a
mural painted on a wall of a local stadium where he played soccer. He was
a member of Huruma Youth Football Club. Had the bullet not snuffed life
out of him, he would have sat the Kenya Certificate of Primary Education
at Huruma Primary School where he was a pupil in March 2021. A police-
man, Duncan Ndiema, was charged with the murder Moyo but he pleaded
not guilty. Media reports indicated that his lawyer, outside court, said that
the state would have to prove that the bullet that killed the teenager came
from his client’s gun.146
143
Andrew Wasike, ‘Kenyan protesters torch police station after killing’ Anadolu Agency (6 July 2020)
<https://www.aa.com.tr/en/africa/kenyan-protesters-torch-police-station-after-kill-
ing/1901799> accessed on 6 January 2021.
144
Max Bearak & Rael Ambuor, ‘Kenyan police shot dead a teenager on his balcony during a
coronavirus curfew crackdown’ The Washington Post (31 March 2020) <https://www.washing-
tonpost.com/world/africa/kenyan-police-shot-dead-a-teenager-on-his-balcony-during-a-
coronavirus-curfew-crackdown/2020/03/31/6344c70e-7350-11ea-ad9b-254ec99993bcstory.
html> accessed on 6 January 2021.
145
IMLU Status Report (8 April 2020) (n 120).
146
BBC, ‘Kenyan policeman charged with murder after curfew killing of teenager’ (23 June 2020)
<https://www.bbc.com/news/world-africa-53150397> accessed on 6 January 2020.

40
It seemed like the police were intent on eliminating any person found
outside their houses during the curfew hours.147 John Mumo Muli, a car
washer in Ruai, Nairobi, was beaten and left for dead by the police on
5 April 2020 allegedly for flouting the curfew directive. In spite of the
injuries, his brother could not take him to hospital for fear of further
police harassment during the curfew hours. He stayed until morning of
the following day when he was taken to Mama Lucy Hospital where he
succumbed to the injuries. The results of the postmortem examination
conducted by IMLU and other agencies indicated the cause of death
as blunt trauma. The same fate befell Maurice Otunga, a mentally dis-
abled person in Khayega - Kakamega, and Peter Gacheru, a second-hand
clothes dealer in Kawangware – Nairobi, both of whom succumbed to
the injuries occasioned by police beating allegedly for being outside
past the curfew hours.148 In both cases, the victims became unconscious
after the beating and subsequently died the following day while under-
going treatment in hospital. Expectedly, the results of the postmortem
examination conducted by IMLU and other agencies confirmed beating
as the case of deaths.
Mathare Social Justice Centre highlighted two cases of brutality in their
locality in an open letter to the Director of Public Prosecutions. The
Centre was actively involved in the cases of Jacktone Omondi, 18, and
Peter Wakaba, 17. The two were separately shot and injured by the po-
lice in Mathare on 14 October 2020 at around 7.30 pm. Following the
incident, three young Mathare women activists alerted local networks

147
Esther Waigumo and Njoki Gacheke Gachihi, ‘Police violence and the criminalisation of the
poor in Kenya’, Verso Books (21 July 2020) <https://www.versobooks.com/blogs/4791-police-
violence-and-the-criminalization-of-the-poor-in-kenya> accessed on 11 March 2021. See also
Akello Odenyo, ‘They died at the hands of curfew cops – activists’ The Star (3 June 2020)
<https://www.the-star.co.ke/news/2020-06-03-they-died-at-the-hands-of-curfew-cops-ac-
tivists/> accessed on 11 March 2021; and IMLU Status Report of 20 April 2020 (n 120).
148
Defenders Coalition, ‘Situation of human rights defenders in Kenya in the wake of Covid-19:
Violence, impunity and retrogress to police state’ <https://defenderscoalition.org/wp-con-
tent/uploads /2020/05/Report-on-COVID-19-impact-in-Kenya-.docx.pdf> accessed on 11
March 2021.

41
 and managed to get the young men medical care within hours. Omon-
di was shot as he was going about his normal day to day activities in
Espana area in Mlango Kubwa, and Wakaba was shot in the leg as he was
eating in an outdoor space, Alos in Mlango Kubwa.
Wakaba was then put in the back of an unmarked Toyota Probox salon
car by the police and taken to a nearby petrol station. His mother and
other community members went to the petrol station to plead for him
to be taken to hospital and to know the reason for the shooting. The
police officer in question allegedly refused to release him saying the
boy would bleed until his death. After community members agitated,
he was taken to Pangani Police Station and asked to clean a cell even as
his leg bled. It was reported that the inmates protested that he should
not be in the cell as he was bleeding. The officer then took him out and
left him close to Mathare River, perhaps to die.
The three activists thereafter took the teenagers to Medical Sans Fron-
tiers Clinic for medical attention, and hours later, they managed to go to
Kenyatta National Hospital where they were admitted. The two teen-
agers underwent surgery on 15 October 2020. To the surprise of their
community, Omondi and Wakaba were treated like criminals; they were
chained to the hospital beds for the duration they were at the hospital,
and were not allowed to shower.
The letter further stated that Wakaba’s mother and a lawyer from Am-
nesty International Kenya went to pay the hospital bill on 26 October
2020 so that the teenagers could be discharged. However, their doctor
refused on account that they did not have permission from Pangani Po-
lice Station. The letter further stated that Wakaba’s mother received
several phone calls from a police officer instructing her to go to the
Pangani Police Station to get a letter she would present to the hospital
to have the young men discharged. She had doubts, so she did not go.
Omondi and Wakaba were discharged on 30 October 2020 and taken to
Pangani Police Station where they remained in custody.149
Mathare Social Justice Centre, ‘Open letter to the DPP: Unlawful detention, injury to and
149

charges against Mathare residents’ (2 November 2020) <https://www.matharesocialjustice.

org/police-brutality/open-letter-to-the-dpp-unlawful-detention-injury-to-and-prosecution-

42
Still, in the killing fields of Mathare, Vitalis Owino, 36, met his death
when he went to answer the call of nature on 3 May 2020. Owino’s
widow Esther Achieng’ said her husband left the house some minutes
past 6 pm to buy food for dinner on his way from the toilet. Achieng’
explained that they did not have toilets where they stayed thus, they
had to walk to Mradi, a short distance away from their house to access
public pay toilets. That was never to be on that day as police pounced
on Owino and beat him to death. Witnesses said Owino was unable to
flee, and despite his pleas, police went ahead and killed him. From 7.30
pm, Achieng’ started making desperate calls, but the phone went un-
answered. The phone later went off at around 2.00 am. Her fears were
confirmed when at 5.00 am she got information that her husband had
died. Out of anger, residents blocked area police from picking Owino’s
body. Instead, they took the body to Muthaiga Police Station after resi-
dents blocked area police from picking it.150

4.3 Enforced Disappearances

Enforced disappearances constitute a serious affront to human rights
particularly the rights to life, human dignity, liberty and security of the
person, prohibition of torture and inhuman treatment, and fair trial.
The impact of enforced disappearances goes beyond the victim to the
family and society at large. In light of its gravity on human rights, the
right of prohibition of enforced disappearance is non-derogable which
cannot be restricted or suspended even in times of emergencies. The
researchers did not come across any case of enforced disappearances
attributable to enforcement of Covid-19 measures.

of-mathare-residents/> accessed on 21 January 2021.

150
Akello Odenyo, ‘Man answering nature’s call “killed by curfew cops” The Star (4 May 2020)
<https://www.the-star.co.ke/news/2020-05-04-man-answering-natures-call-killed-by-cur-
few-cops/> accessed on 6 January 2021.

43
 4.4 Socio-economic Status as a Determinant of Police Brutality
Police brutality was widespread across the country, but it was the poor
and vulnerable who bore the brunt. Virtually all cases of police brutality
captured in the report were from informal settlements with Mathare
being a major hotspot. It was, however, evident from the onset of the
crisis that the poor and vulnerable were vulnerable. Indeed, in appreci-
ation of the foregoing, KNCHR issued an advisory on 17 March 2020 on
the Covid-19 response in Kenya advising, inter alia, that:
the needs of the most vulnerable in our society must be con-
sidered and be at the centre of all the rapid responses. This
includes…those in informal settlements, who are likely to be
most disadvantaged by measures already in place to contain
the virus which could threaten their daily survival. KNCHR
particularly wish to highlight those whose livelihood will be
affected by the announced preventive measures; those who
will not have the purchasing power to stock up supplies ow-
ing to lack of access, pricing and lack of livelihood. KNCHR
thus urges both national and county governments to put in
place measures, including affirmative action, emergency re-
lief supplies so as to cushion the poor and most vulnerable
groups in our society… ’151

Despite the forewarning, little was done to cushion communities in low

income areas and the vulnerable. The predicament of these communi-
ties put them at a disadvantage during the pandemic. Covid-19 created
double tragedy for low income earners for a number of reasons. To be-
gin with, their livelihoods were most affected following scaling down
in a number of industries, and later cessation of movement in certain
areas. News site, Tuko, reported that after the Government announced
the cessation of movement into and out of Eastleigh Area in Nairobi
on 6 May 2020, Mathare residents protested on Juja Road saying the
151
KNCHR, ‘Advisory on the Covid-19 Disease Response in Kenya’ (17 March 2020) <https://
www.knchr.org/Portals/0/Statements/KNCHR%20PRESS%20STATEMENT%20AND%20
ADVISORY%20IN%20RESPONSE%20TO%20COVID-19%20DISEASE%20IN%20KENYA.pd-
f?ver=2020-03-17-145621-057> accessed on 6 January 2021.

44
restriction was a threat to their source of income.152 This was further
complicated by curfew which required people to be indoors between
7.00 pm and 5.00 am. Communities that ordinarily trekked kilometers
to save their daily wages for more priorities like food were bound to
encounter police during curfew on their way home. With their mea-
ger livelihoods further diminished, low income earners could not afford
hand sanitisers and masks. Further, the high concentration of people in
small spaces coupled with lack of social amenities provided a fertile
ground for police harassment. As highlighted in this report, a man was
killed by police as he was going to a toilet. Furthermore, previous cri-
ses – as in the case of post-election violence in 2007/8 and 2017 – it is
clear that inequality exacerbated police brutality.

It is, however, important to note that police brutality against the poor,
especially in informal settlements was not spurred by Covid-19 pandem-
ic. Rather, it is a common occurrence that gained visibility because of the
health crisis. If anything, it appears the pandemic may have provided an
excuse for the police to brutalise and kill. A documentary by Manu Val-
carce gives insights into challenges human rights defenders encounter
in the fight against extra-judicial executions. In the film, Julie Wanjira, a
Co-Founder of Mathare Social Justice Centre notes ‘since I was a child,
I have seen police kill…It has been killer cop after killer cop’. Speaking
in the same vein, the Co-Convener of the Social Justice Working Group
Faith Kasiva says that extra-judicial executions appear to be in informal
settlements only, creating an impression of criminalisation of the youth
and poverty. The gravity of policing challenges in informal settlements
is aptly summed by Lucy Wangui, a resident of Mlango Kubwa whose
husband was killed by the police when she was eight months, two weeks
pregnant. Wangui says, ‘We have insecurity from the police officers.’153
The way police enforced the ban on public gatherings also demonstrat-
152
Asher Omondi, ‘It’s our income: Mathare residents protect cessation of movement in Eas-
tleigh’ Tuko (7 May 2020) <https://www.tuko.co.ke/355371-its-source-income-mathare-resi-
dents-protest-cessation-movement-eastleigh.html?utm_source=email&utm_medium=ps> ac-
cessed on 6 January 2021.
153
Manu Valcarce, ‘Ghetto Justice: Social Justice Centres fight for the right to life’ (7 January 2021)
<https://www.youtube.com/watch?v=7XKUC2iAvPA> accessed on 21 January 2021.

45
 ed the discriminatory manner in which the measures were enforced. For
instance, Kenya’s political class led by the President, Deputy President
and Opposition Leader continued to hold public rallies where proto-
cols on social distancing and masks were disregarded. Despite the out-
right contravention of law, the police appeared blind. It is in this regard
that the Haki Africa Executive Director Hussein Khalid observed that ‘it
would appear the government is restricting citizens, while politicians
are let loose to do as they wish. Kenya is fast becoming a nation of
double standards.’ 154

154
Hussein Khalid, ‘Uhuru’s double standards on Covid-19 restrictions’ The Star (3 October 2020)
<https://www.the-star.co.ke/siasa/2020-10-03-uhurus-double-standards-on-covid-19-restric-
tions/> accessed on 6 January 2021.

46
47
 5.0

WATCHING THE
LEVIATHAN:
THE ROLE PLAYED BY
NON-STATE ACTORS

48
I n appreciation of the impact of pandemic and the contain-
ment measures on human rights and the rule of law, a num-
ber of non-state actors made interventions for compliance
with the human rights standards and the rule of law.155 The
interventions were complementary to the actions by different
state agencies during the period under review. Specifically, the
interventions aimed at creating awareness, monitoring and as-
sessing the implementation of the containment measures, as-
sessing the impact of the pandemic and the responses to it on
the Kenyan population, and supporting the victims of violation
of human rights. These were achieved through advocacy, mon-
itoring and documentation, citizens redress mechanisms and
public interest litigation, among others, as highlighted below.

5.1 Advocacy
Advocacy was undertaken during the monitoring process to inform the
Government’s interventions, improve implementation and policing of
the measures, and ensure accountability for violation of the law and
human rights. This was achieved through media interviews, press state-
ments, advisory opinions and proposals with the common thread of
the need by the Government to adopt human rights-based approach
to policing. Notably, advocacy statements were issued regarding the
use of excessive force by the police in enforcing the measures against
pandemic, impact of the pandemic and the measures against it on the
population especially the vulnerable groups, transparency and account-
ability on the management of resources allocated to mitigate the im-
pact of the pandemic, and redress and accountability for violations of
the law and human rights.156 Remarkably, the development of guidelines

155
The non-state actors were mainly the media, CSOs, professional bodies and private individ-
uals. Some of these were IMLU, Kenya Human Rights Commission, Kenyan Section of the Inter-
national Commission of Jurists, International Justice Mission (Kenya), Haki Africa, Law Society of
Kenya, Amnesty International Kenya, Katiba Institute, Kenya Legal and Ethical Issues Network on
HIV and AIDS, Transparency International (Kenya), Defenders Coalition, Federation of Women
Lawyers-Kenya, Kituo cha Sheria and Muslims for Human Rights.
156
IMLU Press Release (28 April 2020) (n 12).

49
 on policing the pandemic for consideration by the NPS was an import-
ant advocacy best practice aimed at infusing the human rights-based
approach to policing.157 Advocacy for the adoption of the guidelines
was further carried out through the media specifically the two leading
newspapers in the country - the Daily Nation and Standard Newspaper
– on 4 April 2020.

It is worth noting that in light of the continued serious violation of

human rights coupled with the country’s historical indifference to ac-
The guidelines were developed in April 2020 by the Police Reforms Working Group-Kenya
157

comprising of Amnesty International Kenya, Defenders Coalition, Haki Africa, Transparency In-
ternational (Kenya), Independent Medico-Legal Unit, Kenya Human Rights Commission, Kenya
Section of International Commission of Jurists. The guidelines covered issues such as protection
of life and dignity, safety and well-being of police officers, humane and safe public order man-
agement, command responsibility, right to grievance redress, and monitoring and investigation
mechanisms.

50
countability for the violations, advocacy was escalated beyond the na-
tional level particularly in regards to serious violations of human rights
such as extra-judicial executions and torture. For instance, IMLU peti-
tioned the African Commission on Human and People’s Rights and the
United Nations Special Rapporteur on Extra-Judicial, Summary or Arbi-
trary Executions for urgent interventions, particularly in relation to the
extra-judicial executions, torture and inhuman treatment by state secu-
rity apparatus in enforcing the measures against Covid-19.158 This action,
aimed at ensuring Kenya complies with its international obligations by
not only respecting and protecting human rights during the period of
the pandemic, but also ensuring accountability for the violations.

Notably, the communication to the UN Special Rapporteur on Extra-Ju-

dicial, Summary or Arbitrary Executions, while documenting the cases
of extra-judicial killings, urged the Rapporteur to:
a) commence dialogue with the Government of Kenya to (i) ensure
speedy investigation of the killings in accordance with interna-
tional and national standards of criminal law, and prepare files
to facilitate and expedite fair and independent criminal pro-
ceedings; and (ii) facilitate strengthened judicial accountability,
including identifying possible avenues for the administration of
justice for those purposes at the national, regional and interna-
tional levels; and
b) draw the attention of the United Nations High Commissioner
for Human Rights to serious situations of extrajudicial, summary
or arbitrary executions happening in the country for their im-
mediate action including writing to Kenya to take measures to
prevent further loss of life and holding the perpetrators crimi-
nally liable.

IMLU letters to the UN Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions

158

and the African Commission on Human and People’s Rights (n 117).

51
 In relation to the African Commission on Human and People’s Right,
IMLU sought an urgent intervention by the Commission to prevent fur-
ther violation of human rights thus:
a) ensure that Kenya adheres to the Robben Island Guidelines by
ensuring that those responsible for acts of torture or ill-treat-
ment are subjected to the legal process and General Comment
No. 4 to ACHPR on the right to redress for victims of torture and
other cruel, inhuman or degrading punishment or treatment by
ensuring that the victims are able to access reparations;
b) urge Kenya to preserve the right to life in accordance to Article
4 of ACHPR and General Comment No. 3 of ACHPR on the right
to life by ensuring that effective, impartial and prompt investi-
gations are conducted and the perpetrators subjected to a judi-
cial process; and
c) urge Kenya to respect, recognise and protect the role of human
rights defenders and human rights organisations who were in-
creasingly being targeted for actively supporting and raising the
voices of victims of police brutality.

5.2 Monitoring and Documentation

Monitoring entailed the assessment of the impact of Covid-19 on the
Kenyan public and the implementation of the containment measures by
the Government. Monitoring particularly focused on adherence to the
rule of law and human rights standards by difference players, including
members of NPS. The adoption of a collaborative approach to moni-
toring enhanced the effectiveness of the exercise in terms of coverage
of the whole country especially the hotspots, authenticity of informa-
tion, and common purpose. In the case of IMLU, monitoring focused on
the right to life and prohibition of torture, cruel, inhuman or degrading
treatment or punishment.

The monitoring identified gaps in the measures and their implemen-

tation with a common finding of increased violation of human rights
by the police in the enforcement process. The exercise revealed wide-

52
spread and wanton violation of human rights especially extra-judicial
executions, torture and other forms of ill-treatment by security agen-
cies. Indeed, the use of live ammunition against unarmed members of
public was found to be one of the causes of deaths and injuries by the
police.159

The results of the monitoring were documented in the reports and com-
muniqués issued from time to time to various stakeholders for action.
For instance, following the monitoring exercise, IMLU petitioned the
Inspector General of Police calling for accountability for police brutal-
ity and upholding of human rights standards in enforcing the Covid-19
containment measures.160 At the same time, IMLU called for co-opera-
tion between NPS and IPOA in the investigations, including provision
of deployment records and particulars of officers in command of the
units that committed human rights violations. In addition, IMLU wrote
to NPSC in April 2020 regarding the conduct of the police in the en-
forcement of the containment measures, and received feedback that
NPSC had requested IPOA to investigate all the cases. The results of the
monitoring exercise enabled the non-state actors to identify matters
for their intervention and informed other actions such as litigation and
advocacy.

5.3 Citizens Redress Mechanisms

A number of non-state actors, mainly CSOs, provided platforms to the
public for redress of violation of human rights during the period of en-
forcement of the measures against pandemic. This entailed receiving
and processing complaints of violation of human rights. It is worth not-
ing that most of the complaints received by these bodies were against
the police for use of excessive force, torture or ill-treatment in the
enforcement of the Government’s directives on Covid-19. These com-
plaints were subsequently processed and a referred to relevant Gov-

159
See, for example, IMLU’s petition to the African Commission on Human and People’s Rights
(n 117). See also IMLU’s Status Report (4 June 2020) (n 120).
160
IMLU’s Petition to the Inspector General of Police (n 12).

53
 ernment agencies for further action. Indeed, the initial interventions by
these bodies, such as postmortem examinations, provided the founda-
tion for subsequent investigations, prosecution and disciplinary action
by Government agencies. IMLU, for instance, handled 68 cases of ex-
tra-judicial executions and torture from 15 counties as at 30 October
2020. These included 25 cases of extra-judicial executions and 43 cases
of torture or ill-treatment. Of these cases, 58 victims were male while
10 were female.

Source: IMLU

54
Out of the 25 cases of deaths caused by extra-judicial execution and
torture, IMLU conducted 19 autopsies and prepared forensic and legal
documentation which is critical in criminal proceedings and redress
mechanisms. These subsequently formed the basis of further action by
IPOA following the referral by IMLU.

Redress also entailed supporting the victims to access justice. This in-
cluded provision of legal advice to the victims on the available reme-
dial action and legal representation in court. For instance, IMLU filed a
constitutional petition in Kakamega Law Court on behalf of 13 victims
of police brutality. Similarly, the Government’s requirement of person-
al upkeep by persons in mandatory quarantine was successfully chal-
lenged on behalf of the victims by non-state actors.161

5.4 Medical and Psychosocial Support

In consideration of the need to save lives and ensure the mental and
psychological well-being of the victims, a number of non-state actors
provided medical and psychosocial support to the victims of viola-
tion of human rights. For instance, IMLU provided support for medi-
cal treatment for injuries occasioned by gunshot and assault wounds.
Additionally, IMLU provided counseling services to 11 families affected
by extra-judicial execution and torture. Overall, the number of victims
- primary (victims) and secondary (family members) – reached was 28
which included 11 male and 17 female. Counseling services provided a
critical support and healing process to the victims most of whom had
initially exhibited post-traumatic stress symptoms, anxiety and physical
symptoms. Besides, further support was provided to the victims in the
form of safe houses to protect them from danger.

Okiya Omtatah Okoiti & 2 Others v Cabinet Secretary, Ministry of Health & 2 Others; Kenya
161

National Commission on Human Rights (Interested Party) [2020] eKLR.

55
 IMLU’s Interventions

Monitoring and Advocacy

• Monitored compliance with the rule of law and human rights standards in
the enforcement of containment measures
• Undertook advocacy through press statements, media interviews and is-
suance of advisory proposals.
• Petitioned the Inspector General of Police, African Commission on Human
and People’s Rights, and the UN Special Rapporteur on Extra-Judicial, Sum-
mary or Arbitrary Executions for accountability for police brutality
• Participated in the development of Covid-19 policing guidelines for con-
sideration by the National Police Service
Access to Justice
• Handled 68 complaints of extra-judicial executions (25) and torture or
cruel treatment (43)
• Conducted 19 postmortem examinations out of the 25 cases of extra-ju-
dicial executions
• Prepared forensic and legal documentation to facilitate dispensation of
justice
• Fostered partnerships with Government oversight agencies for redress of
violations through referral and follow-up of cases of violation human rights
• Provided legal advice to victims of police brutality on available remedial
action
• Provided legal support in four cases – watching brief in three criminal cas-
es and a constitutional petition on behalf of 13 victims of police brutality
Medical and Psychosocial Support
• Supported victims of police excesses to access medical treatment
• Provided counseling services to 11 families (28 people in total, 11 male and
17 female, comprising primary and secondary victims) affected by extra-ju-
dicial executions and torture
• Provided safe houses to victims of police brutality
Public – Police Engagement
• Promoted public – police engagement in the enforcement of the contain-
ment measures in 13 police stations.

56
5.5 Litigation
This is a complementary mechanism that was employed by non-state
actors to determine the constitutionality and validity of the actions tak-
en by the Government. Specifically, litigation was invoked to determine
the legality and validity of the curfew order, use of force by the police
in enforcing the Covid-19 containment measures, and the requirement
of persons put in mandatory quarantine to pay for their upkeep. Addi-
tionally, support was provided to the victims of police excesses through
watching briefs in criminal proceedings. IMLU participated in four court
cases, including a constitutional petition it filed in Kakamega on be-
half of 13 victims of police brutality, two briefs in Nakuru and another
one in Nairobi. Similarly, Amnesty International Kenya, Kituo Cha Sheria,
Haki Africa and International Justice Mission filed a class suit against the
Government on behalf of victims of police brutality in September 2020
seeking compensation and an order compelling the Government to op-
erationalise the National Coroners Service Act, Prevention of Torture
Act and the Victim Protection Act.162

It is worthnoting that litigation by non-state actors, provided an import-

ant avenue of upholding and developing sound jurisrupdence on the rule
of law and human rights in the country. In Okiya Omtatah case,163 the
Court emphasised Kenya’s obligation under Article 12(1) of ICESCR and
section 27 of the Public Health Act in regards to providing the highest
attainable standard of health to her citizens. As such, the court found
the action by the Government of requiring persons in compulsory quar-
antine to pay for their upkeep unconstitutional. In the Law Society of
Kenya case, the Court upheld the Petitioner’s contention that the use of
excessive force by police officers in enforcing the curfew order during
the Covid-19 containment period breached the Constitution.164 Having
observed that the police had indeed used excessive and unlawful force,
the court faulted the manner in which the police had enforced the cur-
few. Pointedly, at paragraph 37 of the judgment, the court noted thus:
162
Amnesty International Kenya (n 14).
163
Okiya Omtatah Okoiti (n 161).
164
Law Society of Kenya (n 13).

57
 It appears that in confronting the coronavirus, which is by
all means a faceless enemy, the police brought the law and
order mentality to the fore. Diseases are not contained by
visiting violence on members of the public. One cannot sup-
press or contain a virus by beating up people. The National
Police Service must be held responsible and accountable for
violating the rights to life and dignity among others.

This decision is important for the respect of the rule of law and human
rights, particularly in relation to extra-judicial and torture or inhuman
treatment cases which usually obtain in instances of use of excessive
force by the police. The importance of this decision lies not only on
the finding that the use of excessive force in enforcing the curfew was
unconstitutional, but also insofar as it held that the NPS would be liable
for the violation of human rights by its officers.

5.6 Community Engagement with the Police

This strategy entailed the use of existing community engagement

frameworks to foster police-public relations thereby improving policing
during the enforcement of the Covid-19 pandemic measures. The main
platform in this regard was community policing which provided a criti-
cal and direct engagement between the police and the public on mat-
ters of policing. In the case of IMLU, for instance, this approach was ad-
opted in relation to 13 police stations spread across the country where
it had established partnerships in the past three years.165 These included
police stations in Isiolo, Kisumu, Nakuru and Nyeri counties. To this end,
IMLU monitored compliance with the human rights standards, particu-
larly with reference to the adherence to the bail and bond policy guide-
lines for arrested persons. Feedback from the police stations pointed
to the importance of community engagement in improving policing. In
particular, compliance with the standards was noted in the reports from
the respective community policing committees with the public playing
a significant role in policing. For instance, in Nyeri Town and Karatina,
165
IMLU Status Reports (n 109 & 120).

58
the good relations between the public and the police yielded positive
results with the public assisting the police in ensuring compliance with
Covid-19 containment measures.166 In addition, the reports indicated a
decline in cases of sexual and gender based violence from these police
stations. In order to deepen the engagement, IMLU provided support
to the respective police stations with personal protective equipment,
which included sanitizers, handwashing gels, disinfectants, gloves and
masks as a way of complementing the Government’s efforts in contain-
ing the spread of the virus.

Police officers and members of Community Policing Committee engaging community

members in Keringet, encouraging them to stay home to avoid contracting the virus.

166
Lydiah Nyawira, ‘Police arrest 17 people in Nyeri for flouting curfew rules’ The Standard (18
April 2020) <https://www.standardmedia.co.ke/article/2001368422/nyeri-mcas-caught-par-
tying-arrested> accessed on 11 March 2021.

59
 6.0

REMEDYING POLICE
EXCESSES

60
T he principle of accountability for violations of human
rights is one of the fundamental pillars of the international
human rights framework. It requires measures to be taken
to bring the perpetrators of human rights violations to account,
and provide remedies to the victims of such violations. These in-
clude penal and administrative measures such as investigations,
prosecution and disciplinary action against the perpetrators. In
addition, remedies to the victims of violation of human rights
such as compensation, restitution and apology are part of the
accountability requirements. Such measures should be prompt,
transparent, effective and impartial. In recognition of the likely
impact of the measures taken by different African countries to
contain Covid-19 pandemic, the African Commission on Human
and People’s Rights called upon member states to

set up effective and efficient systems to monitor the

measures adopted and take corrective measures and
undertake investigations in cases of allegations of vio-

lations of human and people’s rights.167

In the context of Kenya, besides the international human rights instru-

ments, accountability for violation of human rights has elaborately been
provided for in the Constitution and enabling statutes.168 This includes
an institutional framework for oversight and redress.169

167
The African Commission on Human and People’s Rights, (n 15) and ‘press statement on the
coronavirus (Covid-19) crisis’ (28 February 2020).
168
These include Article 10, 22, 59 and 232 of the Constitution. The National Police Service Act,
the Prevention of Torture Act and the Victim Protection Act are some of the statutes that pro-
vide for accountability for violation of human rights.
169
The main institutions of human rights oversight and accountability are Parliament, Judiciary,
Kenya National Commission on Human Rights, Office of the Director of Public Prosecutions,
National Gender and Equality Commission, Commission on Administrative Justice and the Na-
tional Police Service (Internal Affairs Unit).

61
 Prevention of Torture Act
Remedies
17 (1) A victim of an act of torture or other cruel, inhuman or degrading
treatment or punishment shall obtain redress and shall have an enforce-
able right to – (a) adequate reparation including restitution, (b) adequate
compensation, and (c) rehabilitation.
(2) In the event of the death of the victim as a result of an act of tor-
ture or other cruel, inhuman or degrading treatment or punishment, the
victim’s dependants shall be entitled to reparation.
(3) …

Following the adoption of measures to contain the pandemic and the

subsequent documentation of violation of human rights in the enforce-
ment of the measures as discussed in the preceding section, the Govern-
ment and the independent oversight bodies (hereinafter referred to as
the Government) took various actions to address the violations. These
included monitoring of the human rights situation and implementation
of the Covid-19 containment measures, issuance of advisory opinions to
the Government,170 litigation,171 investigation, prosecution and adminis-
trative sanctions against the perpetrators. This section focuses on the
measures taken to address violations especially in relation to extra-ju-
dicial executions, torture or ill-treatment and enforced disappearances.

6.1 Redress for Violation of Human Rights

6.1.1 Monitoring of Human Rights

Monitoring was mainly carried out by KNCHR and IPOA to assess adher-
ence to the rule of law and human rights standards. In the case of IPOA,
monitoring took the form of inspections of police premises to ensure
170
KNCHR, for instance, issued advisories on a number of issues related to Covid-19 pandemic,
the measures to combat it and enforcement of the measures, ranging from legislation to human
rights-based approach to policing. See KNCHR (June 2020) (n 12).
171
KNCHR and IPOA participated in Law Society of Kenya case (n 13). KNCHR also participated
in Okiya Omtatah case (n 161).

62
compliance with the guidelines of the Ministry of Health on social
distancing. The monitoring identified policy, legal and administrative
gaps as well as human rights concerns arising out of the pandemic and
the containment measures. Generally, the results of the monitoring in-
formed recommendations to various government agencies on ways of
addressing the gaps and improving governance. For instance, IPOA made
a raft of recommendations to NPS on police conduct while enforcing
the Covid-19 measures. In addition, monitoring informed programming
and actions by the oversight bodies in relation to the pandemic.

6.1.2 Penal Sanctions

Penal sanctions constitute the main plank for addressing violation of
human rights. Investigation, prosecution and punishment of those re-
sponsible for violation of human rights play a critical role in combat-
ing impunity. They not only ensure that the perpetrators are brought
to book, but also create deterrence since the perpetrators and other
like-minded persons would be aware that any violation would be acted
upon. In this regard, penal sanctions are prerequisites of an effective
human rights accountability system.

a) Investigations
In the context of enforcement of Covid-19 pandemic measures, investi-
gations were mainly carried out by IPOA, KNCHR and IAU. It is, however,
worthy to note that whereas the mandates of IPOA and IAU are limited to
complaints against police officers, the mandate of KNCHR is broader and
covers complaints of violation of human rights against any person in Kenya.

In the case of IPOA, it received 93 complaints against police officers by

22 September 2020. This comprised 21 cases of death and 72 other cases
including rape, assault, robbery with violence, unlawful arrest and unfair
treatment. In terms of gender, 69 of the victims were male – repre-
senting 74.2 percent - while 20 were female – representing 21.5 percent
and 4 were others - representing 4.3 percent. The high number of male
victims brings to the fore the economic impact of the violations on the

63
 families of the victims since men are mostly the breadwinners of their
families. An analysis of the complaints further reveals the relationship
between socio-economic status and enforcement of the Covid-19 pan-
demic measures. A case in point is Nairobi where at least 79 percent of
the victims resided in informal settlements such as Huruma, Kiamaiko,
Kayole, Kawangware, Mathare and Githurai.

Source: IPOA

Interestingly, it was noted that the number of cases of death received

by IPOA (21) was less than those received by IMLU (25) during the period
covered by this report. Whereas this was not the subject of this study, it
could be a manifestation of the state of policing oversight of policing in

64
Kenya. Specifically, it could be a pointer to limited public trust in IPOA
which, as the main oversight body for the police, would be expected
to receive and handle more such cases than any other body. Indeed,
the cases of deaths received by IPOA included referrals from IMLU and
other organisations. In addition, it could point to failure by the NPS to
report such cases to IPOA as per the law.

At the time of compiling this report, the investigations of the com-

plaints were at different stages with seven cases having been forwarded
to the Director of Public Prosecutions (DPP) with various recommenda-
tions. Two cases were pending before court with the suspects having
been arraigned for trial. In addition, in January 2021, the DPP approved
for prosecution of 15 police officers and six Busia County enforcement
officers for, inter alia, aggravated assault and malicious damage to
property for an incident that happened on 30 March 2020 in Nambale
Sub-County.172 However, the DPP withdrew charges against the suspects
one week later without giving reasons for such action and the efforts
by various stakeholders for rescission or explanation of the decision did
not bear any fruit.173 This action undermined the efforts of ensuring ac-
countability by the officers and justice for the victims of the violations.

In the case of KNCHR, it received 220 complaints of violation of human

rights related to Covid-19 between 15 March 2020 and 6 June 2020.174
The complaints included 10 cases of loss of lives and 87 cases of inhu-
man or degrading treatment by law enforcement officers. Following the
assessment of the complaints, 180 complaints were admitted for action,
39 had legal advisory services provided and three were pending submis-
sion of additional evidence. The Internal Affairs Unit also investigated a
number of cases of police misconduct which formed the basis of prose-
cution and disciplinary action against the concerned officers. However,
as earlier stated, we did not receive information from NPS or IAU on the
particulars of the cases received and handled by IAU.
172
Gordon Osen (n 130).
173
Police Reforms Working Group – Kenya (n 131).
174
KNCHR (June 2020) (n 142.

65
 b) Prosecution
Prosecution, as an integral component of penal accountability, was un-
dertaken in few cases. This included the case of Yassin Hussein Moyo
where the responsible police officer was arraigned in court on 23 June
2020. Earlier, on 11 May 2020, another police officer was charged with
fatal shooting of Reuben Karani in Mathare Estate on 13 April 2020.175 In
addition, three police officers were charged with assaulting civilians in
Nyeri and Muranga counties.176 However, it is worthwhile to note that at
the time of compiling this report, none of the cases had been concluded.
6.1.3 Administrative Action
Administrative action in the form of disciplinary action was carried out
to address instances of misconduct, and improper behaviour by police
officers in the enforcement of Covid-19 containment measures. Viola-
tion of human rights through use of unlawful and excessive force, ha-
rassment, extortion or arbitrary arrest not only constitutes a criminal
conduct, but also misconduct or improper behaviour which attracts
disciplinary action. The underlying importance of disciplinary action is
accountability of the perpetrator and affirmation of the organisational
position regarding such conduct.
Disciplinary action was mainly carried out by NPS and NPSC following
complaints by the public, CSOs and recommendations by other over-
sight agencies. The arraignment of police officers in court also provided
grounds for conducting disciplinary action. For instance, disciplinary ac-
tion was carried out against over 14 police officers for misconduct which
included four officers from Nakuru County who had separately assaulted
a man in Mauche Village in Njoro Sub-County and another in Kaptembwa
within Nakuru Town West Constituency on the eve of 1 April 2020.177
175
Carolyne Kubwa, ‘Officer alleged to have killed Mathare man charged’ The Star (11 May 2020)
<https://www.the-star.co.ke/news/2020-05-11-officer-alleged-to-have-killed-mathare-man-
charged/> accessed on 11 March 2021.
176
OHCHR & SJCWG (n 138).
177
Capital News, ‘CS Matiangi says 14 police officers interdicted over misconduct during curfew’
(7 April 2020) <https://www.capitalfm.co.ke/news/2020/04/cs-matiangi-says-14-police-of-
ficers-interdicted-over-misconduct-during-curfew/> accessed on 11 March 2021, cited in the
IMLU Status Report (20 April 2020) (n 120) p 8.

66
6.1.4 Reparation for Victims of Human Rights Violations
Reparation for violation of human rights forms an integral part of re-
storative justice that underlies the international human rights system.
While not restoring the victims to their former position, reparations
have the impact of ameliorating the effects of the violations on the
victims. In addition, it has the potential of fostering trust between the
public and the police. In light of this, states are obligated to ensure
prompt, effective and adequate reparation to the victims of the viola-
tions. This entails ensuring access to judicial and non-judicial mecha-
nisms and providing relevant information concerning the violations and
reparation mechanisms, including available remedies.178 The obligation
extends to providing protection to the victims and their families, and
also providing legal, medical, social and psychological and adminis-
trative support to the victims. Indeed, such measures are particularly
provided for under the Victim Protection Act, 2014 which provides for,
among other things, reparation and compensation, protection and sup-
port to the victims of crime and abuse of power.179

In the context of Kenya, available information indicate that other than

the limited penal actions and advice given by the oversight bodies in the
course of their work to the victims to seek civil remedies, there was noth-
ing to indicate support by the Government to the victims. Apart from the
information about the violations and the available remedies being hard
to come by, no support of whatever nature was provided to the victims
by the Government to ameliorate the violations. In other words, the vic-
tims were left on their own with limited support only coming from CSOs.
A case in point was the matter of Yassin Moyo where it was established

178
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of International Hu-
manitarian Law, adopted by the United Nations General Assembly in Resolution 60/147 of 16th
December 2005.
179
Such protection to the victims extends to instances of proceedings in criminal cases where
the victims may need protection as per the witness protection programme under the Witness
Protection Act, Chapter 79 of the Laws of Kenya.

67
 that other than IPOA that had always provided updates in relation to the
criminal case in court, they had received no other support from the Gov-
ernment. It was only CSOs such as IMLU and Amnesty International Kenya
that had provided support, which while critical was not adequate.

6.2 State Interventions: Too Little Too Late?

In spite of the above interventions, the actions did not adequately fulfil
the country’s national and international human rights obligations. This
was particularly manifested by the low level of redress of the violations
thereby the continued widespread violation of human rights by the po-
lice. The inadequacy of the interventions was further manifested by the
failure by NPS to comply with a court order that declared excessive use
of force unconstitutional.180 Indeed, the action by NPS condoned police
misconduct in a number of cases, including the mass transfer of police
officers at Lessos Police Station in Nandi County following an incident
where three people were fatally shot by the police which amounted
to transferring impunity. Similarly, the statement by the police spokes-
person181to the effect that police officers accused of brutality were
still very young, erratic and drunk with power failed to appreciate the
magnitude of police brutality and the need for accountability.182 These
actions brought to the fore the apprehension in some quarters of the
objectivity and impartiality of the police in investigating fellow officers.
It should, therefore, be unsurprising that the violations continued with
police impunity being manifested further in their failure to care for their
victims, a number of whom were left for dead without medical care.

In addition, the of omission police oversight institutions in the list of

essential service providers reflected the Government’s position on
oversight and accountability during the pandemic. The inclusion of
the oversight institutions would have served as a reminder to law en-
forcement officers that even in the midst of the pandemic, the law and
human rights had not been suspended, and any breach would be in-
180
Law Society of Kenya (n 13) para 154(a).
181
Citizen TV (n 141).
182
Tonny Ndungu (n 116).

68
vestigated swiftly and the perpetrators made to account. Further, this
would have facilitated prompt and efficient investigations, especially
due to the fact that the enforcement of the curfew, which significantly
contributed to the violation of human rights, was always conducted at
night. This explains the reason the Court ordered the Government to in-
clude IPOA in the list of services, personnel or workers exempted from
the provisions of the Public Order (State Curfew) Order, 2020.183

Besides the above, the inadequacy of the redress mechanisms can be

decoded from the following actions. First and foremost, in spite of re-
ports of widespread violation of human rights especially extra-judicial
executions and torture, the number of cases taken up for investigations
and prosecution constituted a small fraction.184 As such, and as illus-
trated by varying statistics from different organisations, some violations
were not taken up for investigation with the perpetrators likely to go
scot-free due to the passage of time. While it is worthwhile to note the
capacity of the oversight institutions to investigate all the violations
at the same time, the country’s history has shown that such matters
are usually forgotten or pushed to the back burner with no subsequent
action leading to entrenched impunity.

Second, the effectiveness of a redress system hinges on the time it takes

for the perpetrators to be brought to book. This explains the require-
ment for prompt action on violations under different international hu-
man rights instruments. Redress action or intervention that takes long
is not only a manifestation of a dysfunctional system, but also prolongs
the pain and suffering of the victims. Such action cannot amount to
prompt, effective and adequate remedy. On the contrary, it promotes
impunity since the perpetrators may not be brought to book and any
prosecution, if conducted, may be unsuccessful due to passage of time,
and fatigue of the victims and witnesses among others.
Law Society of Kenya (n 13) para 154(b).
183

Missing Voices <https://missingvoices.or.ke/> for instance, reported that only 28 perpetra-

184

tors were charged in court out of the 144 cases of extra-judicial killings in 2020 (accessed on 11
March 2021).

69
 In Kenya, however, the investigations and subsequent prosecution of
the perpetrators of violations during the enforcement of Covid-19 con-
tainment measures has been painstakingly slow. This was demonstrat-
ed by the case against 21 officers whose prosecution was approved by
the DPP in January 2021 for an incident that happened in March 2020
– almost one year later. Similarly, in the case of IPOA, out of the 93
complaints taken up for investigations by 22 September 2020, less than
10 of them had been forwarded to the DPP for consideration by the
time of compiling this report. These were not isolated cases, the same
scenario obtained in other oversight institutions. Delay was also noted
with respect to prosecution of the perpetrators in court where cas-
es take long to be determined. For instance, at the time of compiling
this report, the case of Yassin Moyo, which was presented to court in
June 2020, was yet to be concluded and there was no indication on the
likely date of conclusion. As the adage goes, justice delayed is justice
denied, the inordinate delay in completing investigations and prosecu-
tion of the perpetrators amounts to miscarriage of justice thereby ren-
dering accountability through penal action ineffective. This has been
compounded by lack of transparency and accountability in the exercise
of investigative and prosecution authority as aptly illustrated by the
withdrawal of charges against the officers in the Busia case without any
explanation or justification.

Third, the failure to regularly update the public on the status of the
investigations, prosecution or administrative action undermined the
impact of such interventions especially in creating deterrence and fos-
tering public confidence. An examination of the available Government
platforms, including the websites of the relevant oversight institutions,
shows a dearth of information on the interventions. While confiden-
tiality is important in such processes, it should not be used as a shield
against public scrutiny. As a matter of transparency and accountability,
information on the interventions by the Government should be pro-
vided proactively on regular basis in accordance with Article 35 of the
Constitution and the Access to Information Act, 2016. The information

70
should include the number of matters taken up for investigations, pros-
ecution or administrative action, and their status – whether ongoing or
concluded – and their outcomes.

Related to the foregoing, there were no deliberate, swift and concrete

steps to ensure prompt, effective and adequate reparation to the vic-
tims of human rights violations. Apart from failure to provide crucial
information on the violations and available remedies to the victims and
the public, there was no support to the victims to access the available
remedies and ameliorate the effects of the violations. In other words,
the interventions were not victims-centric. It is instructive to note that
the obligation on the government in relation to reparation goes beyond
merely providing advice to the victims and includes legal, medical, so-
cial, psychological and administrative support none of which was pro-
vided. Such support to the victims would be critical given the country’s
slow and technical judicial processes coupled with the Government’s
regrettable history of settling court awards to the victims of human
rights violations. Indeed, the failure by the Government to provide sup-
port to the victims breached the law especially the Victim Protection
Act and the Legal Aid Act which it has continually demonstrated reluc-
tance to fully operationalise.

Finally, while monitoring of human rights situation by the oversight in-

stitutions during the period under review was important, the effective-
ness of the mechanism was undermined by a number of institutional
factors. These included lack of timely information to the public on the
results of the monitoring exercise and limited advocacy that did not
go beyond publication of reports where such reports were published.
In other words, the Government was not held to account for the viola-
tions with the mechanism being a mere formality churning out statistics
about the violations.

71
 7.0
CONCLUSIONS AND
RECOMMENDATIONS
7.1 Conclusions

T he outbreak of coronavirus pandemic in late 2019 created

a monumental and unprecedented health crisis that test-
ed the global foundation of human rights, the rule of law
and democracy. Although appearing as a public health emer-
gency, the pandemic presented formidable social and economic
challenges to the global community. The adoption of extraordi-
nary measures by Kenya was, therefore, essential in containing
the virus and mitigating its impact on the population. However,
the placement of the National Police Service at the heart of the
enforcement of the measures, while well-intentioned, led to the
widespread violation of human rights, including non-derogable
rights. This could partly be attributed to the deployment of con-
ventional policing strategies that regarded the pandemic as a
security risk rather than a public health risk. This approach was
counter-productive and might have in some ways jeopardised
efforts to curb the spread of the virus. Indeed, compliance was
driven by fear as there was no behaviour change.

72
Moreover, the Government response failed to appreciate the heteroge-
nous nature of the Kenyan population particularly the socio-economic
contexts. Principally, the strategy was not responsive to the needs of
the low income earners and vulnerable groups whose lives and liveli-
hoods were threatened by the pandemic and the containment mea-
sures. Although there is no study to show the burden of police brutality
on the most affected clusters, many families will for many years con-
tend with the financial, material, psychological, health and social chal-
lenges resulting from police brutality. As highlighted in earlier parts of
this report, many families lost breadwinners while family members were
left with life-threatening injuries.

The study revealed that Government institutions and CSOs disagree

over the use of the phrase ‘extra-judicial execution’ by stakeholders
in police accountability. Whereas CSOs use the phrase as defined in
international instruments, public institutions – despite Kenya having
ratified these instruments – are in denial. In effect, victims became mere
statistics and society immune to serious human rights violations. This
had the potential of undermining the gravity of the violations and con-
sequently the attendant responses by the oversight bodies. The wide-
spread and recurring incidents of police brutality were symptomatic of
dysfunctional internal accountability mechanisms partly manifested in
the supervision of officers and complaints handling mechanisms. Addi-
tionally, the police adopted a discriminatory approach in enforcing the
measures. As evident from the report, the poor and vulnerable groups
bore the greatest burden of police brutality, thereby exacerbating their
situation. Generally, the conduct of the police violated the law and ne-
gated the very purpose of the containment measures.

Despite the violations and acknowledgement by various stakeholders,

accountability was not given adequate consideration by the Govern-
ment. The accountability system and processes did not sufficiently re-
spond to the expected standards. Besides the failure to recognise po-
lice oversight bodies as essential service providers during the curfew,

73
 the investigations, prosecution and disciplinary action were unrespon-
sive to the needs of the victims and society at large. Opaque and inor-
dinate delays in conducting the investigations, administrative processes,
and prosecution undermined effective police accountability. The luke-
warm approach to accountability was aptly exemplified in the sphere
of reparations where no support was provided by the Government to
the victims of the violations. Essentially, the victims were left to their
own devices with limited support coming from CSOs. The foregoing
leads to the only conclusion that by the Government did not meet its
obligations on redress of violations of human rights under the national
and various international human rights instruments.

7.2 Recommendations

Respect for the rule of law and human rights is one of the hallmarks of
democratic nations worldwide. Kenya, being an emerging democratic
nation and a signatory to many international human rights instruments,
is obligated to respect, protect, promote and fulfil human rights even
in times of war or national emergencies. The foregoing can be achieved
through the establishment of sound accountability frameworks and
processes. From the conclusions of the study and in appreciation of the
gaps and challenges, the following are recommended to improve police
accountability in Kenya.
i) The Government needs to develop and implement a holistic
approach that integrates human rights, public participation and
accountability in crises or emergencies. The strategy needs to
incorporate social science to facilitate the appreciation of the
different contexts and drive behaviour change.
ii) There is need to strengthen transparency and accountability in
the exercise of public power by policing and oversight bodies.
This entails curtailing the arbitrary, whimsical or abuse of power
relating to investigation, prosecution and disciplinary action.
iii) The Government needs to adopt an inter-agency approach to

74
 accountability involving key actors in crises and emergencies to
enhance information sharing, co-ordination, efficiency and ob-
jectivity.
iv) Police oversight agencies need to undertake robust monitoring
beyond statistics to capture the full extent and burden of police
brutality, and take appropriate remedial action.
v) For expeditious hearing and determination of matters relating
to human rights violations or breaches of measures put in place
during crises or securitised operations, the Judiciary needs to
consider adopting ad-hoc measures to facilitate access to jus-
tice and timely conclusion of cases.
vi) The National Police Service needs to adopt global best practic-
es on policing the Covid-19 pandemic to guide its enforcement
role. Such could take the form of guidelines that embed human
rights principles, accountability and community policing, and
which should be reviewed during a crisis or emergency.
vii) The National Police Service needs to embrace robust supervi-
sion and internal monitoring of police conduct and hold super-
visors accountable for violations committed by officers working
under them, in appropriate cases.
viii) Non-state actors need to continue to monitor the Govern-
ment’s compliance with its international human rights obliga-
tions during the Covid-19 pandemic and other crises. This may
include joint monitoring to enhance multiplicity of perspec-
tives, strategy and objectivity.
ix) The Government, through the Attorney General, needs to fa-
cilitate victims to access justice for reparations through actu-
al legal representation or non-judicial avenues. In the case of
non-judicial means, the Attorney General may adopt alternative
dispute resolution methods for expeditious and fair reparations.
x) The National Police Service needs to initiate periodic engagements
with key stakeholders – state and non-state – to explore areas of
collaboration, best practices, gaps, challenges and solutions (as in

75
 the case of National Council on the Administration of Justice or
Court Users Committees).
xi) The National Police Service, National Police Service Commis-
sion and the Independent Policing Oversight Authority need to
periodically review performance of the police to identify gaps
and take remedial action. The review also needs to be carried
out after a crisis or emergency.
xii) The Government, including oversight bodies, should engender a
culture of regular and timely publication and dissemination of
information to the public. Such should include proactive disclo-
sure of information on the investigations, prosecution and ad-
ministrative action undertaken by them. The information needs
to be published on the websites and other accessible platforms.
xiii) Relevant Government agencies need to undertake prompt and
thorough investigations to bring to book police officers found
culpable for human rights violations during the pandemic.
xiv) Where a conviction is secured in criminal proceedings, the Court
needs to consider compelling the convicted officer to provide
appropriate remedy including compensation to the victim to
tame abuse of power and widespread impunity.
xv) There is need for Kenya to strengthen the domestic legal frame-
work through:
a) ratification of the International Convention for the Protec-
tion of All Persons from Enforced Disappearances, and the
Optional Protocol to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punish-
ment;
b) enactment of a law to comprehensively deal with enforced
disappearances; and
c) development of regulations to fully operationalise the Pre-
vention of Torture Act and the Victim Protection Act to fa-
cilitate justice for the victims of human rights violations.

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