Patterns of Serious Human Rights Violations in the Mandera Operation

Whether they are police or military, any Kenyan security forces conducting law enforcement activities are bound by Kenyan and international human rights law. Kenya’s constitution and international treaty obligations unequivocally prohibit torture, rape, and other inhuman and degrading treatment.[113]They also provide for the rights to the protection of the home and family, and specific protection of children.[114] The conduct of Kenyan police officers is also governed by the Police Act[115] and the UN Code of Conduct for Law Enforcement Officials.[116]

During the Mandera operation, Kenyan security forces committed numerous, serious, and systematic human rights violations, as described in the previous sections and briefly summarized below. Given the widespread and systematic nature of the violations, the crimes may amount to crimes against humanity, thus placing the crimes within the jurisdiction of international bodies such as the International Criminal Court (ICC), should the Kenyan government fail to act.

The Kenyan government has a legal obligation to carry out prompt and fair investigations into torture and prosecute and punish those military and civilian officials responsible.[117] All states party to the Convention against Torture are responsible for bringing torturers to justice.[118] A full investigation into torture should trace the origin of orders that led to the torture, be they from civilian or military commanders.[119] But the investigation should also determine command responsibility—that is, those who knew or should have known about the abuses—identifying those who were in a position of command yet failed to prevent the abuses or punish those responsible. The Committee against Torture (CAT) has stated that it “considers it essential that the responsibility of any superior officials, whether for direct instigation or encouragement of torture or ill-treatment or for consent or acquiescence therein, be fully investigated through competent, independent and impartial prosecutorial and judicial authorities.”[120]

Torture

A large proportion of the hundreds of people who were rounded up in the Mandera region were severely beaten or mutilated by the security forces.

The Convention against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person... by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” In order to amount to torture, such pain must be inflicted for specific reasons, including extracting information or a confession, punishment, or intimidation.[121]

In Mandera scores of people were beaten to the point where they lost consciousness, sustained serious physical damage, or suffered deliberate genital mutilation. Human Rights Watch researchers documented these crimes in at least five locations (Lafey, Wargadud, Elele, Qaramadow, and El Wak) and similar crimes are reasonably believed to have occurred in every other community where the operation took place, including Warankara, Bambo, Gari, and Damasa. As such, the acts of torture inflicted by the security forces were both widespread and systematic, and may amount to crimes against humanity.[122]

Rape

Further investigation is required to ascertain how widespread the use of rape and sexual assault was during the Mandera operation. Human Rights Watch interviewed seven rape victims and several women who alleged attempted rape in two communities: Wargadud and Elele. Other community members told Human Rights Watch that they believed many other women had been raped in those locations and possibly others, but the deep social stigma attached to rape in northeastern Kenya and the under-reporting of rape generally in Kenya[123] may have prevented many and perhaps most victims from speaking about their experiences.

As one woman explained, “Officers succeeded in entering the homes of two of my neighbors but the women deny they have been raped. According to our culture it is shameful, so even if someone is on top of you, you [can] deny that you have been raped.”[124] According to a nurse at El Wak hospital, “Because of the stigma they tend to hide what happened to them.”[125]

Further details about the pattern of rape cases would help establish whether the abuses were confined to certain units and locations or were part of a broader policy. But irrespective of the numbers of women who were raped, Kenyan and international law clearly prohibit rape and sexual assault as forms of torture and other ill-treatment, and as discrimination based on sex.

Destruction of Property and Looting

As described above, the security forces looted property and money from homes, businesses, and public buildings in many of the communities that they attacked during the operation. A commissioner from the Kenya National Commission on Human Rights described seeing police and military trucks in Warankara packed with household goods and foodstuffs two days after the conclusion of the operation, and many of the local shops were ransacked.[126]

When Human Rights Watch visited Lafey in February 2009, hundreds of people lined up to present compensation claims for property that they said had either been stolen or destroyed during the operation. An independent inquiry or government commission should address the issue of compensation for all victims of looting and property destruction by government agents.

Responsibility for the Crimes

The operation in Mandera was a joint operation between different units of the police and the military. In many locations it was difficult to distinguish responsibility for individual crimes as victims and witnesses are often confused about the minor differences between uniforms worn by different branches of the security forces. 

Further investigation is urgently needed to gather additional evidence and identify those individuals responsible for the abuses and the commanders who supervised the operation.  Victims in different locations described both police and military commanders as present during the operation.

Many of the victims interviewed by Human Rights Watch said that the police were more actively engaged in beating and torturing civilians, while army personnel stayed back to cordon off possible escape routes. One victim in Wargadud said, “It was more police and Administration Police than army involved in beating.”[127] Another victim in Elele told Human Rights Watch:

The army came and surrounded the town—they did not come into the village, just cordoned it off. Senior army officers came in—one was Borana—they went around and said, “If you have guns, give them to us and we will leave you.” The army did help round people up. They brought us to an area where AP [Administration Police] and police were waiting and it was them who beat us.[128]

In other locations, however, victims were quite clear that the personnel beating them and walking on their backs were military.[129] In addition, the presence of the green Hughes army helicopter in at least two locations—Wargadud and El Wak—points to the army having played a critical role in the operation.[130]

In El Wak, numerous witnesses identified the commanders of the operation who were present at the beatings by rank, and some by name. The senior police, military, and administrative officers of El Wak district and North Eastern province are well known. For example, two former police officers were caught up in the operation and beaten. One had previously served in El Wak with some of the commanders who were present. He said, “I recognized their ranks. Among the leaders were the OCPD [officer commanding police district] and an army major [with] two crowns [on his uniform].”[131] According to the two former police officers and several other witnesses in El Wak, the senior security officers present at the pitch in El Wak and witnessing the beatings were:

• Josephat Maingi, the provincial commissioner (PC);
• Stephen Chelimo, the provincial police officer (PPO); and
• Major Wambua, the commanding officer of 7 Kenya Rifles regiment, based in Garissa.  

Others reported to have been present were the officer commanding police district (OCPD), the deputy OCPD, and the officer commanding station (OCS) for El Wak.[132]

Another victim beaten on the pitch said, “I saw the PPO and the OC [officer commanding] of the operation, a major there.”[133] Yet another man added, “Kenya has done something that no human being can tolerate. They are supposed to send their forces to where the bandits are. Instead of killing bandits they are trying to kill their citizens. The PPO and the PC were here.”[134]

In Lafey several victims claimed that “the district officer was there that day, watching” and that he was present during the operation, witnessing the mistreatment of civilians.[135]

Individual responsibility for the rapes committed during the operation remains unclear for many of the cases documented by Human Rights Watch. The women said their assailants were soldiers or police who were not from the area and whose names they did not know, but that they could identify the perpetrators by sight. Several described their attackers as having red or black braiding similar to that found on regular police or Administration Police uniforms.[136] A woman from Wargadud said that the policemen who attacked her remained in the town for several months afterwards: “I know the ones who raped me,” she said. “They are police officers. I could recognize their faces. After raping me, they stayed here for two months. Now they have been transferred.”[137]

None of the victims have reported the crimes to the police. Some simply laughed when asked by Human Rights Watch if they had done so, incredulous at the idea because the police themselves had been their attackers. However, given the willingness of at least some victims to talk and the detail of their testimonies, an independent inquiry would likely be able to identify those responsible as well as which units were deployed in the communities where rape was carried out. Any independent inquiry should include trained female investigators to take statements and avoid further retraumatization of victims. It should also have the mandate to take appropriate steps to protect the identity of rape complainants and be able to refer them to health and mental health services.

Liability of Commanders

The way in which the Mandera operation was conducted demonstrates that security forces were given orders at a senior level that clearly violate Kenyan and international law. This would not be the first time:  Human Rights Watch and other organizations have documented how the joint operation in Mount Elgon followed a similar pattern.[138]

The rounding up and torture of hundreds of people across 10 communities was clearly systematic and indicative of a well-planned operation. The fact that the torture and beating was known and possibly planned at a high level is supported by the consistent accounts of seven individuals interviewed by Human Rights Watch, all of whom described the presence of numerous senior administration officials at the sites of the beatings and torture. One witness added that a senior commander in a helicopter visited during the operation, checked on the status of the operation, asked whether “anyone had died yet,” and then ordered the personnel to continue.[139]

The evidence indicates that security forces committed human rights abuses as part of a deliberate strategy that must have been approved by high-level officials, possibly including the ministers for internal security and defense, both of whom are located within the Office of the President. The consistent pattern of mistreatment and torture described by scores of victims is also evidence of planning.

As such, it is not just the commanders of the Kenyan police, Administrative Police, and army on the ground who should be held to account for the widespread and systematic torture of civilians, but the politicians who knew or should have known about the crimes that resulted from the illegal strategy of the operation, failed to stop it or hold anyone to account, and who bear ultimate responsibility as civilian commanders of the forces.