KITUO CHA SHERIA BLOG

Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

No express black letter law exists on torture in Kenya as a law passed by Parliament. Our leaders whisper in dark corners of the evils of the past yet legislation on the abuses is as much the same as when they were being perpetrated. Our redeemer can only be found in Article 25 of the Constitution. The following is an overview of the legislation against torture perpetrated by police.

Legal Analysis

The Constitution of Kenya guarantees the Bill Of Rights in Chapter Four for every individual. These freedoms are not granted by the state but are inalienable by virtue of being a human being.

Article 25(a) of the Constitution provides for the freedom from torture and cruel, inhuman or degrading treatment or punishment being unlimited and guaranteed by the constitution.

The Constitution of Kenya guarantees its citizens’ protection by creating National Security Organs in Chapter fourteen of the Constitution. Among these organs is the National Police Service created in pursuance to Article 243 of the Constitution.

Article 4 of the United Nations Convention against Torture states:-

• Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
• Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

The African Charter on Human and Peoples’ Rights provides in Article 5 that, every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

There are no penal provisions against a torture perpetrator in Kenya. The closest penal provision is causing grievous harm contrary to Section 34 of the Penal Code. The mental aspect of torture is yet to be investigated and coded in law in Kenya.

Despite these constitutional provisions, several government agencies frustrate the enjoyment of these rights. Top among them is the National Police Service established under Article 243 of the constitution.

The objects and functions of the National Police Service are to:-

1. strive for the highest standards of professionalism and discipline among its members;
2. prevent corruption and promote and practice transparency and accountability;
3. comply with constitutional standards of human rights and fundamental freedoms;
4. train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and
5. foster and promote relationships with the broader society.

Despite this clear constitutional mandate the police have been in the forerun to exercise acts of torture.

Some of the documented reports include:-

Prison Commandant boss sued over torture of five inmates Maureen Odiwuor, Standard Digital News, Kisumu, 7 March 2014 www.standardmedia.co.ke/thecounties/article/2000106290/prison-commandant-boss-sued-over-torture-of-five-inmates [accessed 17 March 2014]

Kenya police accused of abuse, torture, rape of Somali refugees after terror attacks Tom Odula, The Associated Press AP, Nairobi, 29 May 2013 www.foxnews.com/world/2013/05/29/kenya-police-accused-abuse-torture-rape-somali-refugees-after-terror-attacks/ [accessed 21 March 2014]

The state of the world’s human rights Amnesty International AI, Annual Report 2013 www.amnesty.org/en/region/kenya/report-2013 [accessed 26 Jan 2014]

Human Rights Reports » 2005 Country Reports on Human Rights Practices U.S. Dept of State Bureau of Democracy, Human Rights, and Labor, March 8, 2006 www.state.gov/g/drl/rls/hrrpt/2005/61575.htm [accessed 16 February 2011]

Freedom House Country Report – Political Rights: 4   Civil Liberties: 3   Status: Partly Free 2009 Edition www.freedomhouse.org/report/freedom-world/2009/kenya [accessed 26 June 2012]

Kenyan Police Accused of Torture, Arbitrary Arrests in Eastleigh http://www.voanews.com/content/human-rights-watch-charges-kenya-with-torture-arbitrary-arrests-of-somalis/1670519.html reported by Mohammed Yusuf on May 29, 2013 9:44 AM.

Kenya Police fire tear gas at children protesting over playground  http://www.aljazeera.com/news/africa/2015/01/kenyan-police-tear-gas-protesting-children-201511913521303110.html accessed 9/3/2015 2 : 45 pm

These are among the many media reports showing gross violation by the police on the right against torture. Very little is often done in respect of disciplining the rogue police officers instigating torture especially when the police officers are responding to ongoing threats such as terror or demonstrations. It is as if at these points of chaos no order should exist except that which is dictated by the bearer of a gun. If such rationale is to be advanced then law on protection of civilians during war would be nonexistent.

The reverse is however true. The right against torture cannot be limited or bent to achieve any aim. There is no justification for it hence any act of the same should be taken with utmost diligence to ensure it never occurs again.

In fact the police spokesman Mr. Masoud Mwinyi has been quoted admitting there will always be complaints against police and the way they execute their work.  Mwinyi said some police officers may have overstepped regulations when dealing with security matters. “We also acknowledge once in a while we might have some incidents of some officers getting excited or going out of their mandate,” he said.

Such talk when brought out so casually raises doubt over the genuine concern in achieving discipline in the force. Officers don’t get excited. They break the law! They rape, maim and kill people. Torture cannot be justified. Justification signifies failure and failure creates anxiety. An anxious force eager to please its superiors will instigate all forms of human rights violation. It is the predicament we as a country face whenever we have an imminent threat.

Avenues for redress

The National Police Service Commission

The constitution foresaw such gross violations as has been promoted by the police force since independence and included the National Police Service Commission. The commission is charged with the responsibility of exercising disciplinary control in the service. So far the commission has vetted 196 police officers but there are no records over how many it has dismissed on disciplinary grounds.

The Independent Policing Oversight Authority

This institution is created by Act No. 35 of 2011. It provides provide for a civilian oversight of the work of the Police. The objectives of the Authority are to:-

1. hold the Police accountable to the public in the performance of their functions;
2. give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and
3. ensure independent oversight of the handling of complaints by the Service.

The authority has neither prosecutorial power nor disciplinary power hence only investigative authority ridding it of any autonomy. It relies on the police to arrest fellow policemen accused of gross violations of human rights and other crimes while the police relies on the office of the Director of Public Prosecutions to commence proceedings against the accused. The circle of bureaucracy if not properly effected frustrates justice and ensures such crimes are not brought to book.

The Kenya National Human Rights and Equality Commission

This is a body established under Article 248(a) of the constitution. It promotes enjoyment of all fundamental human rights investigating on alleged breaches and reporting on the complaints to the necessary bodies.  Every person has the right to complain to the Commission, alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

Conclusion

The right against torture is yet to be fully realized in Kenya. Threats to this freedom are still being justified by the government including the passage of the new Security laws. For instance Section 49 of the Security Amendment Act 2014 provides for limitation of the number of refugees. Such limitation when effected results in automatic torture of any refugee found within the borders. Kenyan police tortured and abused more than 1,000 refugees, asylum seekers and Somali Kenyans in Nairobi in a “10-week rampage” beginning in late 2012 in Eastleigh. This action was taken from a police directive, juxtapose if such a law was to take effect.

All is not gloomy as a bill called The Persons Deprived of Liberty Bill, 2014 is in parliament awaiting debate. The bill will protect against any elements of mental torture by ensuring remandees and prisoners are guaranteed their freedom.

Recommendation

Parliament should pass a law on prohibition from torture to cure the gap created in realization of this right. The law as it is still leaves a lot of room for interpretation by the police and any other citizen on what amounts to torture. International obligation to adopt a statute for the achievement of this right under the United Nations Convention against Torture is yet to be achieved.

Reparation for victims should be provided for in a prohibition from torture bill. As noted from the prosecution of former Chicago Police Commander Jon Burge, police torture survivors continue to suffer from the psychological effects of the torture they endured without any compensation or assistance; most have no legal recourse for any redress.  They cannot sue for any financial compensation because the statute of limitations has expired on their claims of torture or trespass to person.  Their family members also continue to bear the wounds of decades lost away from their loved ones.