• In 2017, Parliament enacted the National Coroners Service Act (NCS Act), providing the framework for investigation of reported deaths.
• The NCS Act avails an opportunity for independent forensic documentation and reporting by qualified pathologists.
The Missing Voices Initiative reveals that, as at August 31, 115 people have reportedly been killed by the police or reported missing in Kenya this year.
A total of 727 cases have been documented since 2007. Only 26 of the total cases have resulted in prosecution of those believed responsible and fewer than 10 convictions obtained. The data further reveals that 62 per cent of victims are men, especially the youth.
These incidents are largely attributed to anti-crime or anti-terrorism operations, political demonstrations, internal conflict, acts of political or ethnic repression and other security operations.
Article 238 (2)(b) of the Constitution unequivocally requires that national security be pursued in compliance with the law, utmost respect for the rule of law, democracy, human rights and fundamental freedoms. In exercising their powers, national security agencies ought to respect the cultures of different communities and adhere to the principles of national security.
It is worrisome that tendencies that prevailed in the late post-independence era are still prevalent today. Hundreds of deaths and disappearance cases remain unsolved. Arbitrary killing violates the right to life and inherently denies victims equal protection of law that should be enjoyed by every person.
Inadequate accountability for police-related crimes, shrouded by corruption, and external interference with investigations is the heart of the problem. Cases mainly fail due to a system ridden with unconvincing stories, lost files and inconclusive reports. Although reforms in the National Police Service are continuously undertaken, the adverse and deep-rooted impact of the rot lingers like a thorn in the side of players in the criminal justice system eventually hampering access to justice.
An inquest is a judicial inquiry into the cause and circumstances of a death. Under the Criminal Procedure Code, a magistrate must hold an inquest if a person dies in police or prison custody, and is also possible in other cases of mysterious death. This is not adequate – many people who die at the hands of the police are not in their custody.
The police are usually at the forefront in investigation of suspicious disappearances and deaths. The ‘Utumishi kwa Wote’ brigade has over the past several decades been implicated in the vice they are meant to protect against. Inadequate accountability for crimes by state security agents perpetuates rife public mistrust.
The system as is requires that victims report suspicious deaths to the police. Fear and intimidation gimmicks employed by them — or, at least, by some rogue officers within their ranks — make it difficult to transparently undertake investigations.
The Independent Policing Oversight Authority tasked with investigation of police-related misconduct is overwhelmed. Moreover, difficulty in accessing information held by IPOA regarding investigation of suspected police-related deaths only perpetuates its operational challenges with accountability.
IPOA’s 2017-2018 Annual Report shows over 9,878 complaints were received between 2012-18. Only 5,085 were accepted, 752 investigated and completed and only 53 proceeded to court, with two officers reported to have been convicted. The report states that 3.3 per cent of the complaints received within that period concerned death associated with the police. This amounts to about 325 deaths.
NATIONAL CORONERS' SERVICE ACT
In 2017, Parliament enacted the National Coroners Service Act (NCS Act), providing the framework for investigation of reported deaths.
A coroner is an official who conducts formal inquiries into unexplained deaths. The operationalisation of the Act would see a lot of responsibility taken away from the police. The Coroners’ Service is to be headed by a trained doctor with qualifications and experience in pathology, including providing evidence to the courts.
The NCS Act avails an opportunity for independent forensic documentation and reporting by qualified pathologists. Under Section 26, the coroner must undertake full medical investigations of all deaths suspected to be of criminal nature.
Section 25 provides that all deaths of a violent nature, or in a long list of other circumstances, must be reported to the coroner directly or via the police. Deaths in custody must also be reported to the coroner within six hours.
Where the coroner concludes that a reported death arose out of a crime, an interim report must be forwarded to the National Police Service and the Director of Public Prosecutions within 24 hours of the report of death for purposes of criminal investigation. The final and conclusive report may be submitted in seven days. This would assure quicker independent probes into suspicious deaths in the country.
Under Section 62, the state will bear the costs of undertaking a postmortem examination or autopsy of reportable deaths thus easing the financial burden on families of victims. The fees currently stand at Sh3,000 to Sh10,000, depending on the government facility.
Over three years after its enactment, the Act is still not in effect.
WHERE IS THE PROBLEM?
It may be that there are financial reasons for the delay: Setting up a whole new service, especially ensuring coroners are available everywhere in the country, will not be cheap.
There are also some uncertainties about the Act. How will it relate to the existing law about inquests? The coroner is to conduct a medical investigation but an inquest is not just a medical matter. The medical cause may be clear; the responsibility may not. Are there to be two processes?
Parliament commonly assigns critical administrative functions, usually to Cabinet secretaries. Under the NCS Act, this ‘burden’ was bestowed on the Cabinet Secretary responsible for matters relating to justice. This includes appointing the Coroner-General on the recommendation of the Public Service Commission, and setting the structure of the service, terms and conditions of service, code of professional conduct, and the Regulations to give full effect, in consultation with other authorities.
The outset implementation problem is that there is no Cabinet Secretary responsible for matters relating to justice. One might imagine that the responsibility would then tacitly vest in the Office of the Attorney General.
In 2017, the High Court on two different occasions explained the distinction between these offices. A cabinet Secretary must take an oath of office, is personally accountable to the President and advises on policies and implementation of specific laws in line with the existing government’s development agenda. The Attorney General, who is the principal legal adviser of the government, is expected to protect public interest.
The President may resolve the implementation deadlock in one of two ways. The first option is to appoint a cabinet Secretary for Justice under Article 152(2). We have had ministers for Justice in the past. The reluctance to do so now may be because of the limit (22) on the number of Cabinet secretaries.
The High Court also held that the President could assign a responsibility of a Cabinet Secretary under an Act to the Attorney General — provided that there was nothing inconsistent with the Constitution or law in doing this — but he would have to be treated as a Cabinet Secretary for this purpose and take the oath as such.
This clumsy solution is a result of the failure of the Office of the Attorney General, when drafting new law, to realise that the Constitution changed things and the AG, while a member of the Cabinet, is not a CS. Maybe the affected laws should be amended to make it clear that the AG has these powers if there is no CS for Justice.
Various other important Acts, in the legal sector, including the Victim Protection Act 2014, Legal Aid Act 2016, and the Prevention of Torture Act, 2017 face a similar problem but that is a story for another day. Non-implementation of statutes has far-reaching implications for access to justice in the lives of citizens countrywide.
So the question arises: What is the real reason the AG is not doing what the Act requires? If there are genuine problems with the Act they should be confronted. The country needs more effective ways of dealing with deaths caused by the authorities.
The author is a public interest litigation fellow at Katiba Institute and advocate of the High Court of Kenya.