What the law says on use of firearms by police

There are mixed reactions after advice by Interior Cabinet Secretary Kipchumba Murkomen to police to use their weapons when attacked or invaded by criminals.

The CS, who was attending a graduation ceremony at the Border Police Training Campus in Kanyonyo, Kitui County on Friday, clarified that security agencies are well-trained and aware not to misuse their authority.

"We have not told police to misuse their weapons. We are reminding and defending them of their safety. They know well,” he said.

The ministry has come out to explain that he did not issue a shoot-to-kill order.

“He advised police officers to be alert under situations of criminal acts and when their stations of duty are attacked or invaded by criminals,” a statement said.

The law provides that police officers can use proportional force to protect lives and property, whether that property is public or private property, and whether that life is of an ordinary citizen, a leader, or a police officer.

“It ceases being a right to demonstrate when some citizens or criminals depart from the object or subject of demonstration and engage in lawlessness and outrightly unlawful endeavours.”

“When this happens, the sixth schedule of the National Police Service Act (2011) provides a clear use of firearms framework that guides police conduct when they are exposed to risky situations,” the statement added.

According to the Act, police officers are required to use peaceful and non-violent means as their first course of action, like talking or warning someone, before using force.

When it comes to using firearms or live bullets, the law permits an officer to shoot when their life or a citizen’s life is in immediate danger.

They can also shoot when protecting citizens, including themselve,s from serious harm and property, like during a violent robbery or mob attack or when they are stopping someone charged with a serious crime like murder or armed robbery from escaping jail or police custody and when trying to stop someone from rescuing a dangerous criminal.

These provisions align with both the National Police Service Act and Article 18 of the Penal Code, which recognize that law enforcement officers may use force to apprehend individuals resisting arrest, especially where the individual is committing or has committed a grave offence.

“When CS Murkomen made his remarks in regards to shooting, it is not a blanket endorsement of extrajudicial killings, but a firm reminder that officers are permitted under the law to use force when they feel attacked or a citizen’s life is on the line due to criminal activities.”

Officials said Murkomen’s comments were a reminder that while the police must respect human rights, they also have a duty to defend Kenyans from violent criminals and threats to public safety, especially during chaotic protests or riots.

“His remarks emphasise the need for order, prevention of violent criminal elements, and protection of both civilians and police officers during unpredictable protests and riots.” Citizens need the state and have to trust the state, even when their faith is challenged, the statement added.

The statement added that the government remains the sole entity with the instruments of providing state security and protection of all citizens regardless of their background, status or political affiliation.

“That is a responsibility it takes seriously, especially during times of public unrest or national tension.”

“While citizens have the constitutional right to protest peacefully, that right does not include violence towards fellow protestors, looting and destruction of property,” the statement added.

Once protests turn into riots and lawlessness, where lives are threatened and property is vandalised, they are no longer protected demonstrations in line with Article 37. They become criminal activities and the constitution does not protect that, the statement added.

The Law Society of Kenya slammed Murkomen over his "shoot on sight" order to police against civilians who attack police stations.

The LSK termed the statement reckless, warning it could fuel more extrajudicial killings. Murkomen has since clarified that police are well aware of their limits in the use of force LSK President Faith Odhiambo began by dismissing the authority of the CS to issue such operational directives to the police.

"The Cabinet Secretary has no authority under the law to issue such an order," she noted.

The lawyers' body issued a stern warning to police officers against misusing their firearms, adding: "Any unjustified act of aggression, disproportionate use of force, or extrajudicial killing carried out under such illegal directives will be deemed a premeditated crime."

"We sound our unequivocal warning to the National Police Service, that they are legally prohibited from acting upon and complying with the ultra vires, illegal, and unconstitutional shoot-to-kill order.