The Government’s Response

Small arms control and increased security along Kenya’s unstable borders are important and necessary goals for Kenya’s government. There is no question that the government should play a significant role in quelling the alarming episodes of armed violence—both criminal and ethnic—that plague North Eastern province. There are many challenges to doing so: a historically limited state presence in the area, high levels of small arms and private militias, and pastoralist communities with little confidence in the central government or security forces.

But the manner in which the Mandera operation was conducted exposes not just the government’s failure to provide security, but a deeply entrenched willingness to use systematic and abusive force against Kenyan citizens. With justification, the victims of the operation perceived it not as an exercise designed to disarm them, but as an exercise in collective punishment.

Within days of the operation commencing, public allegations of human rights violations emerged. The Kenya National Commission on Human Rights (KNCHR), a statutory government body,[140] mobilized fast, chartered a plane to reach the remote district on October 29, and brought a media spotlight to the activities of the security forces in El Wak and the surrounding areas.[141] Both major Kenyan television stations broadcast footage of brutalized victims displaying their injuries at El Wak hospital and hundreds of residents threatening to burn their national identity cards in protest at the operation.[142]

The KNCHR report concluded:

There had been use of excessive force in the ongoing security operation in the larger Mandera region and the same should be condemned. Widespread gross atrocities continue to be indiscriminately perpetrated against the residents of the area. While it is appreciated that there is the need to disarm the communities and find a lasting solution to the inter-clan conflict, the current approach is unsustainable, unconstitutional and dehumanizing. In addition to the current security operation, various human rights violations have been perpetrated against people living in northern Kenya under the guise of security operations, and it is worrying that the security forces continue to resort to extrajudicial means to resolve insecurity. The ongoing security operation has created a serious humanitarian crisis with regard to medical supplies, food, schooling and displacement.[143]

When interviewed by KNCHR, the provincial police officer (PPO) for North Eastern province, Simon Chelimo, “audaciously denied the allegations of human rights violations despite evidence to the contrary.”[144]  He even reportedly told KNHCR officials that the wounds of the hundreds of people in El Wak hospital were self-inflicted.[145]

On November 4, 2008, the minister for internal security, George Saitoti, said that “the operation has been a success.”[146]But he also told the press, “All allegations of torture, rape and other related malpractice will be fully investigated.”[147] The following week his assistant minister told parliament, “On the issue of beating up people, I have constituted a committee to investigate thoroughly and elaborately whether there was such a thing.” He also noted that “[t]he government welcomes substantiated information on particular incidents including but not restricted to, excessive use of force, gender based violence and assault for necessary disciplinary measures.”[148]

Although promising to investigate the allegations, to date the government has taken a harsher line with those who have made allegations than with those security force members who committed the crimes. A former member of parliament, Billow Kerrow, who questioned the operation on television and complained about the treatment of members of his community was arrested and charged with “incitement to violence and disobedience of the law.” His trial is currently ongoing.[149]

The government trumpeted the fact that it had recovered “186 rifles, 6 bombs, 620 detonators and 1,885 rounds of ammunition” as of November 11, 2008, without explaining to the public or to members of Parliament how those weapons had been acquired.[150] 

The promises to investigate the abuses were made in November 2008; yet as this report went to press in June 2009, the government has made no statement about the status of any inquiry, nor has there been notice of any action taken against members of the security forces suspected of criminal actions.

Police Reform

Police reform has been high on the agenda of Kenyan human rights groups for many years. It has now emerged as a matter of national urgency in the wake of the woefully inadequate and uneven police response to the post-election violence, the revelations about police death squads ordered to murder suspected Mungiki members, and the systematic torture and disappearance of hundreds of suspected insurgents in Mount Elgon.[151] The Kenyan police have an appalling record of extrajudicial killings, torture, corruption, use of excessive force, mistreatment of people in custody, lack of discipline, and failure to abide by applicable norms. Several high-profile reports have called for far-reaching and urgent police reform, including the report of the Waki Commission to investigate the post-election violence and the report of the UN special rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston.[152]

In response to the presentation of the special rapporteur’s report to the UN Human Rights Council in June 2009, the government acknowledged the problem of extrajudicial killings and the need for reform, committing itself to implementing some of the recommendations of the report.[153]

The scale of reform that is needed is huge. The police have become, in the words of the UN special rapporteur, “a law unto themselves.”[154] As one foreign diplomat put it more mildly, the police are “under-equipped to deal with the security problems in this area.” She went on to note what most Kenyans have come to know, namely that “the police have a very antiquated view of how to build security, there’s no such thing as interrogation by asking questions.... They [the police] genuinely think that you have to beat people so they tell you the truth: this is on purpose, because they think that’s what works.”[155] And even on the same day that Minister Saitoti was acknowledging the need for reform in Geneva, the police released a report exonerating itself of the March 2009 killing of two activists who had collected information on extrajudicial killings.[156]

There was an outcry in Kenya following the joint police-military operation Okoa Maisha (“save lives” in Kiswahili) in Mount Elgon in 2008 when revelations of the scale of the systematic torture of thousands of suspects and the killing of dozens, if not hundreds, came to public attention.[157] Foreign governments suspended military assistance, at least temporarily, instituted vetting procedures for training programs, and redoubled calls for widespread police reform. 

The operations in Mandera region reveal an almost identical strategy at work—the rounding up and torture of civilians as a way of responding to insecurity and illegal militias. This strategy and operation was deployed just months after it had proved so disastrous in Mount Elgon. Not only that, but in February and March 2009 the police reportedly conducted similar brutal house-to-house searches, so-called disarmament operations, in Kuria and Samburu districts respectively, leading to yet more allegations of rape, looting, beating, and mistreatment of civilians.[158]

There is now a broad consensus among civil society, donors, and the government of Kenya about the nature of the reforms necessary to clean up the Kenyan police force and begin to build a force capable of protecting the rights of Kenya’s citizens. The core of the necessary reforms was sketched out in some detail in the Report of the Commission to Investigate the Post-Election Violence (the “Waki Commission”). These included: a complete overhaul of the existing police service, its management structures, procedures and enabling legislation; the establishment of an “Independent Police Conduct Authority” to investigate police conduct; and the merging of the Administration Police and regular police, among other measures.[159]

Reinforcing the recommendations of the Waki Commission are the recommendations of the UN special rapporteur on extrajudicial, summary or arbitrary executions. He specifically called for the police commissioner and the attorney general to be replaced, describing the latter as “the embodiment of impunity in Kenya” for his role in blocking prosecutions.[160]

Now that the government has acknowledged the urgent need for reform, the challenge is to make that reform a reality. Investigating and prosecuting those responsible for abuses in Mandera will be a test case of that commitment.

Foreign governments, especially the European Union, have played a strong role in pushing for security sector reform as an essential part of the reform agenda agreed to by the coalition government, and must keep up the pressure. The United States should continue to implement the Leahy vetting process to prohibit the provision of US foreign assistance to any unit of the security forces credibly implicated in human rights violations unless measures are taken to hold the individuals responsible to account. The UK and other nations providing assistance to Kenya’s police and military should implement similar procedures.

Finally, it is worth noting that some officials within the Kenyan government are aware of how disarmament operations should be carried out according to international best practice and the rule of law, as laid out in the draft National Policy on Small Arms. The draft legislation also shows an awareness of the links between small arms proliferation, insecurity, and good governance. If this draft law were passed and implemented as part of a wider effort at security sector reform, and if the government faithfully adhered to it, the policy might offer some way forward to improve security for the unfortunate citizens of North Eastern province and other unstable parts of Kenya. The National Policy on Small Arms states:

The Government of Kenya’s (GoK) approach to addressing the proliferation of SALW [Small Arms and Light Weapons] is founded on the recognition that sustainable, long-term development and prosperity for all of Kenya’s citizens can only be ensured in a safe and secure environment, free from fear. The GoK believes that to create such a safe and secure environment, it is necessary to identify, understand and subsequently address the entire range of factors that create, fuel and enable insecurity and conflict in Kenya. As such, efforts to address specific security challenges or needs, such as the proliferation of SALW or the development of better relations between the police and communities, must complement and be complemented by broader efforts to address underlying economic, social, cultural or political factors that may cause insecurity or conflict. This means implementing a broad range of inter-connected initiatives on specific security related factors, such as SALW control, community-based policing, and conflict management and peace-building. These efforts will also be linked with broader development programmes where appropriate.[161]