• The 2011 National Police Service Act provides for instances and conditions under which police can use force.
• The sixth schedule of the Act clearly stipulates a police officer shall always attempt to use non-violent means first and force only when non-violent means are ineffective.
The country’s ability to manage public order during a protest was once again put to test on Monday and akin to the past, we failed.
We saw videos of police using excessive force and live bullets, property being destroyed and looting by criminals. Several people were injured and two people reportedly killed by the police.
Efforts to ensure the police are able to adequately manage public order, while citizens enjoy their right to peaceful assembly can be traced back to 2009.
As a result of the bloody 2007post- election violence and in an effort to improve policing, the National Taskforce on Police Reforms was put in place. In its report, the taskforce noted that the public had lost confidence in the police due to their use of excessive force in managing demonstrations and assemblies. To respond to this, a number of legislative and policy reforms were put in place.
The 2010 Constitution provided a platform for reforms in policing of protest. It established the office of the Inspector General of Police, which would exercise independent command over the National Police Service.
To enhance this independence, President William Ruto upon his swearing-in granted financial autonomy to National Police Service by transferring its budget from the Office of the President and designating the IG as the accounting officer.
Additionally, the 2011 National Police Service Act provides for instances and conditions under which police can use force.
The sixth schedule of the Act clearly stipulates that a police officer shall always attempt to use non-violent means first and force only when non-violent means are ineffective. The force also needs to be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used.
To give effect to the National Police Service Act, the National Police Service Standing Order was also put in place. The Standing Orders provide direction to the police on how to carry out their duties. Kenya is also a signatory to a number of regional and international human rights instruments on policing.
In addition to the above laws, we have independent institutions tasked with ensuring that policing of protest is conducted within the law. The Internal Affairs Unit was established to receive and investigate complaints about police misconduct, while the Independent Policing Oversight Authority is mandate to investigate serious cases of use of force by the police as well as deaths resulting from police action.
Despite all these robust legal and policy measures we have continued to witness poor management of public order by the police.
The first principle is the use of necessary force. The principle provides the use of non-violent means wherever possible and only for legitimate law enforcement purpose. The amount of force we saw the police use on Monday was unnecessary, especially on unarmed protestors and even public members who were not part of the protest.
The second principle is proportionality. The police ought to use proportional use of force while managing crowds. This principle sets a ceiling on what amount of force to use in accordance with the threat posed by an individual or group of individuals and the offence that has been or is about to be committed.
Use of live bullets against protesters who are probably throwing stones is unproportionable. There are other means that can be used to deescalate violence by protesters.
Precaution is the final principle of use of force in policing. The police service is expected to adequately plan the public order management strategies and operations in a manner that will minimize the risk of law enforcement agencies having recourse to potentially excessive force.
Principle 5(b) of the 1990 Basic Principles states that whenever lawful use of force and firearms is unavoidable, law enforcement officials must minimize damage and injury and respect and preserve human life.
With more protests in the pipeline, including Azimio Monday and Thursday protests, police should adhere more to the checklist in public order management. The police should protect protesters and arrest criminal actors who use protests as an opportunity to loot and commit other crimes.
Muthuri Kathure is the senior program officer (Civic Space) at Article 19