Jul 25 2017

A New Spate of Extra-Judicial Killings in Kenya: Redefining Rights and Obligations under International Law

By Godfrey Mwango*

Introduction

On 1st April, 2017, Kenya’s television media [note: link to video contains potentially disturbing footage] broadcast appalling scenes of a young man being shot dead by the police in East Leigh, Nairobi.

The Black’s law dictionary defines extrajudicial as that which is done outside the course of regular judicial proceedings; not founded upon a court of law. Extra-judicial killings are acts of impunity that deny individuals the due process of law and the right to life as permitted by law.

The police in Kenya are enjoined to investigate criminal offences and also to enforce the law under Article 245 (4) of the Constitution and the provisions of the National Police Service Act, (Cap 84). Article 244 of the Constitution goes a step further by providing that the National Police Service must “comply with constitutional standards of human rights and fundamental freedoms”.

Requirement of the Due Process of Law

The general tenor of criminal law and procedure in Kenya is that the role of the National Police Service is limited to the establishment of reasonable suspicion on an accused person before preferring charges. The rest of the process is then left to the trial court to determine the guilt or innocence of an accused. In Francis Matheka & 10 Others vs. Director of Public Prosecutions and Another, HC Misc. App No. 362 0f 2014, the High Court asserted that only a trial court can make a finding whether or not a criminal offence was committed after hearing the evidence.

Article 2 (6) of the Constitution of Kenya domesticates any treaty or convention ratified by Kenya and provides that such instruments form part of the laws of Kenya. Article 26 (1) provides for the right to life and further emphasizes that this right can only be limited as authorized by the Constitution or any other written law. Article 50 provides that a suspect or an accused person must be subjected to the due process of law which embody the strict observance of the principles of natural justice. The due process of law is also captured under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, both to which Kenya is a signatory.

Kenya’s Breach of Obligation under Domestic and International Law

The requirement of the due process of law is both a domestic and an international obligation that Kenya must observe when dealing with the accused or persons suspected to have committed crimes. Kenya must comply with the State’s obligations under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. Under the auspices of the International Covenant on Civil and Political Rights,  every accused individual is to be subjected to a hearing. Article 14 of the instrument provides that the accused is to be informed of the nature of charge (s).

Article 10 of the Universal Declaration of Human Rights stipulates that every person is to be presented before an independent and impartial tribunal and is to be accorded fair and public hearing.

Conclusion

Succinctly put, the law is already cast in stone. The National Police Service have no legal authority to determine questions that affect the rights of persons suspected to have committed crimes. The Constitution is the grundnorm and must be respected by all the State actors including the police force. The goal of the Kenyan criminal justice system is not to brandish the sword of punishment of an individual by another or to settle personal vendetta. The course of justice is not to be actuated by ulterior motives or desire to oppress; but, by genuine concerns to render proportionate punishment on behalf of the public for a crime committed. The court is vested with this power and should dutifully guard against such motives that are incongruent to the goals of justice. It should safeguard against usurpation of the inalienable rights guaranteed by the Constitution. The fundamental principles of justice, which include fair play and decency, must not be profaned by the police, who are the high priests in maintaining law and order. The criminal justice system should not be reduced into a pawn by allowing the police to apprehend, prosecute, sentence and execute. The court should not, as it were, fold its arms and stare as the National Police Service execute citizens in broad daylight.

There is no justification for immediate retaliation by police against civilians under municipal law. Kenya is currently in breach of the State’s human rights obligations under both the municipal and international law. Acts of violation of Kenya’s obligations under international law by the National Police Service while discharging its mandate apportions responsibility of the State under the world order. It now behooves Kenya to take urgent remedial measures to ensure compliance with the State’s obligations under both domestic and international law, and to stop extra-judicial killings.

Works Cited

Black’s Law Dictionary 2nd edition available at: http://thelawdictionary.org/extrajudicial/

Video link available at: https://www.youtube.com/watch?v=ush2y3Nvdm4

Constitution of Kenya, Republic of Kenya, 2010 available at: http://www.kenyalaw.org/lex//actview.xql?actid=Const2010

National Police Service Act, Act no 11A of 2011 available at: http://www.kenyalaw.org/lex//actview.xql?actid=No.%2011A%20of%202011

Francis Matheka & 10 Others vs. Director of Public Prosecutions and Another, HC Misc. App No. 362 of 2014 available at: http://kenyalaw.org/caselaw/cases/view/113087/

United Nations Universal Declaration of Human Rights available at: http://www.un.org/en/universal-declaration-human-rights/

United Nations General Assembly, December 16, 1966, International Covenant on Civil and Political Rights, 2200A, New York available at: https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf

National Police Service of Kenya Website available at: http://www.nationalpolice.go.ke

*Godfrey Mwango is an L.L.B graduate of the University of Nairobi. He is currently undergoing the Advocates Training Programme at the Kenya School of Law, where he also serves as a Students’ President. He has a bias for Human Rights, Constitutional and Administrative Law. He has trained under the Honourable Peter Kaluma in the area of Constitutional Law and Judicial Review.

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