March 16, 2008

Use of Excessive Force and Extrajudicial Killings by Police

In Kenya there are three branches of police: the regular Kenya Police; the General Service Unit (GSU), a specialist unit trained in riot control; and the Administration Police, a division initially established to protect the administration but deployed to assist the regular police where necessary. All three branches in any given region are subject to the ultimate control of the Provincial Police Officer (PPO), advised by the District and Provincial Security Committees, chaired by the District Commissioner and Provincial Commissioner respectively.[60]

The Kibaki government reacted to the public outrage that greeted its declaration of victory in the presidential poll by imposing a blanket ban on public demonstrations. The ban was illegal under Kenyan law and contrary to international standards.[61] The government tried to defend the ban as necessary to prevent violence in the wake of the polls.[62] As it turned out, however, heavy-handed police enforcement of the protest ban, including the use of excessive force, claimed hundreds of Kenyan lives, often in circumstances where the police's use of lethal force was unjustified.

In late December police in Nairobi and many towns were confronted by demonstrations that rapidly turned into riots involving looting. During the course of breaking up demonstrations and riots, police used live ammunition, leading in many instances to deaths.[63] The majority of police killings investigated by Human Rights Watch, however, took place as police subsequently tried to contain in the slums persons they believed might try and join demonstrations. Police action included the shooting of unarmed protesters and bystanders, including women and children, without any initial attempt to use non-lethal force, and in situations where there was no apparent imminent threat to life or property.

Shootings by police in Kisumu in late December are described below. Similar patterns were seen in Nairobi, and again in mid-January in Kisumu, where Human Rights Watch witnessed firsthand the use of live ammunition to disperse protesters during the second round of protests on January 16 and 17.

Some policemen interviewed by Human Rights Watch spoke of an unofficial 'shoot-to-kill' policy, although commanders told researchers that police officers are supposed to exercise their own judgement in the use of firearms.[64] The Provincial Police Officer in Kisumu told Human Rights Watch that she ordered her officers to use live ammunition.  One officer in Nairobi explained:

Some of the things we are asked to do. As a human being, we have brothers, sisters. It is difficult to obey illegal orders. The shoot to kill policy is illegal. It is wrong. Only if things get out of your hands should that be necessary .[65]

Across the country, it is clear the police were overwhelmed. But officers in different parts of the country responded to their difficult circumstances in starkly different fashion. Inevitably in the political and polarized context of events, this raises questions about political interference in policing, or the politicized nature of police commands, as well as about police competence and capacity. For example, officers were quick to resort to lethal force in opposition areas such as the slums of Nairobi, Kisumu, and elsewhere when lives were not obviously at risk. And yet when faced with pro-government mobs killing and burning in Naivasha and Nakuru, the police made little attempt to intervene at all. In other areas such as Eldoret and Molo/Kuresoi, victims alleged that the police sided with Kalenjin militias. [66] In Nakuru and Naivasha, eventually, the Kenyan army was deployed to disperse violent gangs, and did so with relatively little loss of further life.  This uneven police response requires further investigation.  Issues of partiality are discussed in the 'Response of the Kenyan Government' section.

The Scale and Impact of Police Shooting

Spontaneous protests erupted all over the country following the announcement of Kibaki as president on December 30, 2007. Media and human rights groups reported scores of deaths as protests turned violent in confrontation with the police. In Mombasa, local human rights investigators counted 20 people shot dead by police in the first few days following the announcement of Kibaki's victory.[67] In Nairobi, each day of the crisis brought fresh reports of shootings by police.[68] In towns across the West of the country–Kisumu, Kericho, Homa Bay, Kakamega, and Molo-reports came in of people killed by the police.[69] In Eldoret, journalists and human rights activists told Human Rights Watch that many of the bodies arriving at the morgue of the Moi Teaching and Referral Hospital during the first week of January were shot by police.[70]

This initial wave of police killings provoked outrage in the media and among the human rights community but did not lead to a change of police tactics. The opposition called three days of protests for January 16, 17, and 18. This brought on more clashes with the police and more deaths.[71] As of January 21, the police confirmed to Human Rights Watch that police officers had shot dead 81 people nationwide, and injured many others although they had no record of the total number of wounded. The police claim that in many of these cases the use of force was justified.[72] 

The total number of people killed by police during January and February 2008 is almost certainly higher than 81. According to the incidents reported in The Standard newspaper in only a few districts in Nyanza and Rift Valley provinces, police shot dead over 205 people up to the middle of February.[73] The Law Society of Kenya's South Rift branch estimates that over 100 people may have been shot dead by police in the Southern Rift alone, not including many places where scores of people shot by police were reported, such as Kisumu, Eldoret, and Nairobi.[74]  Among the most damning facts is that in nearly every location there are reports of police shooting unarmed children.[75]  In Kisumu Human Rights Watch spoke to three girls shot and wounded by police near their homes.[76]

As of February 4, the police were investigating their own use of force (including cases where there were no fatalities) in 142 cases nationwide. However, as of February 21, only two policemen had been charged with excessive use of force.[77] Even a cursory tally of the incidents shows that many more investigations are warranted.

Massacre in Kisumu

The most egregious example of excessive use of force by police was in the city of Kisumu on the eastern edge of Lake Victoria. On Saturday, December 29 and Sunday, December 30 protests in Kisumu town degenerated into violence and looting before and after the announcement of Kibaki's victory.

Kisumu is a stronghold of ODM presidential candidate Raila Odinga, whose family has its roots in the area and where nearly all young Luo men are opposition supporters. The police said they believed they were dealing with a population on the verge of insurrection and indeed, many young men expressed revolutionary sentiments to Human Rights Watch.[78] The poor parts of the city have a reputation of being the most militant, including the slum areas of Manyatta, Kondele, and Western Junction, and it is in these particular parts of town where the police were deployed on Saturday and Sunday after looting took place in the center of the city on Saturday morning.

According to eyewitnesses, on December 29 protests took place in all neighborhoods of Kisumu as local youths set tires on fire and erected roadblocks. Some protesters managed to reach the city center and immediately began looting and burning shops, but others were contained in the slums by police.[79]  According to the police and provincial and district authorities, they tried but failed to disperse looters through non-lethal means.[80] The Provincial Police Officer for Nyanza Province, which includes Kisumu, acknowledged to Human Rights Watch that she ordered her officers to use live ammunition to disperse the looters because the police were "overwhelmed" and "caught off guard" by the ferocity and size of the violent crowds: "I gave that order to shoot, things were getting out of hand."[81] The PPO and the district commissioner acknowledged that the crowds did not have guns, but claimed that the police shooting was justified to control the looting in the center of town.[82]

However, Human Rights Watch investigations found that the majority of people shot in Kisumu died in the residential slum areas far from the shops in the commercial center. According to records kept by officials of the opposition ODM party who counted the bodies arriving at the morgue in Kisumu, around 10 people were shot dead by police in the city center, all the other bodies were delivered from slum areas.[83] While looters were present in the city center on Saturday, December 29, the police succeeded in pushing the protesters back into the slums. The district commissioner told Human Rights Watch that the strategy was to, "get them out of town, push them into the slums and then prevent them from returning."[84] Long after the crowds in the city center dissipated, police drove into the slums on the evening of December 29, and throughout the day of December 30 and opened fire directly and without warning on any group of people they deemed suspicious.

Human Rights Watch interviewed several victims who did not flee from advancing police in the slums because they did not imagine that the officers would open fire on them. For example, on the evening of December 29, a group of boys gathered in Manyatta to protect their employer's hardware store from potential looters. According to the boys, the police did not stop to ask what they were doing, they simply started shooting. One of them was shot in the leg and had to have it amputated. According to another who was present at the scene:

There were two people shot on the other side of the road, shot dead. They were lying on the side of the road, bleeding from the head. People thought they [the police] were firing in the air, that's why we were not running away. But when we realised that they were firing live that's when I said, 'hey, let's run away from here. '[85]

A local priest and a bus driver both described to Human Rights Watch the killing of an 11-year old boy and a young woman shot in the afternoon of December 29 when police dispersed the crowd in Manyatta with live rounds. According to the bus driver:

On [December] 29 there was a disturbance so I went to park my bus. I saw a police car coming. Some of them inside were shooting from the windows. Three were shooting in the air, one was shooting directly at people… I saw a mother falling down, the bullet had hit her in the head. I also saw a child fall down. The child had turned and was hit in the stomach. The crowd ran away and left the injured there .[86]

Residents of Manyatta, Kondele, and Western Junction, the three main residential areas of Kisumu where police were deployed to prevent crowds assembling, described to Human Rights Watch how the police fired indiscriminately.[87] Another man who had gone shopping was returning home when he was shot by police without warning, sustaining injuries to the back of his head:

On [December] 29, I went to the market at 8 a.m. to get food. We heard the noise of rifles shooting. I was by Magadi Catholic Centre. I saw a police saloon car with 'highway patrol' written on it. Two policemen came out and started shooting in every direction. As people were running, the police were shooting at those who were running away. The policeman came and looked at me lying down .[88]

In Kondele, a fifteen-year-old boy was shot from behind on the evening of December 30 while fleeing in terror from policemen who had opened fire without warning at a crowd of ODM supporters. He told Human Rights Watch:

It was evening. There was a group of boys, celebrating and carrying pictures of Raila – they thought he had been announced as the winner. As they were going up the road, I joined them, celebrating also…. We heard gunshots, so everybody was running for his life. I was ahead of my cousin so I went back to look for him. I found myself near the police Land Rover. They had put off the headlights of the car. I realised that I was near because I heard a gunshot. I started running. Then I heard a second one. When I tried to step forward my leg had no power, I fell down .[89]

He spent the night bleeding in the dirt near the side of a road. A week later he remained in constant pain because his family could not afford to see a doctor, buy pain medication, or even find a pair of crutches to help him move around.

According to the Nyanza PPO, on December 29 and 30 the police recovered 33 bodies of people who had been shot or burned alive on those days.[90] At Nyanza General Provincial Hospital, the medical superintendent confirmed that 44 people brought to the morgue between December 28 and January 11, as a result of the violence, had died from gunshot wounds. From the pattern of the gunshots, it appears that the police were shooting to kill males but that the female and child victims were caught by stray bullets. The medical superintendent at the hospital reported that most of the males who had been shot (whether dead or injured) were shot in the body or the head: "Direct hits," she said, whereas wounds of the few women and children were more random, "all over the body."[91] Three girls in Nyanza General Hospital who were shot and wounded were all hit by stray bullets, one in the arm, one in the leg and one in the foot. [92] The two men in the Intensive Care Unit visited by Human Rights Watch on January 14 were, by contrast, both shot in the body, one in the neck and one in the chest. AAs of January 14, 59 inpatients in Nyanza Hospital had gunshot wounds and 138 outpatients had been treated for gunshot wounds.[93] The police acknowledged that all of those shot were likely shot by the police.[94]

Despite outrage in the press, investigations by the Kenya National Commission on Human Rights on January 14, and a pledge by the PPO to Human Rights Watch that there would be no more deaths, [95] on January 16 the police used the same tactics when faced with fresh protests. The sound of police gunfire rang through the streets throughout the day on January 16 as Human Rights Watch interviewed victims from the previous rounds of violence in residential areas of Kondele and Manyatta. That afternoon Kenyan television showed a police officer in Kisumu shooting a man who had been making faces at him-a clearly deliberate act of brutality compounded further by the police officer then walking over to kick the man as he fell to the ground and died.

On January 16 no protests took place in the city center and those that took place in the residential slum areas observed by Human Rights Watch were minimal, mostly consisting of a dozen or so youth burning tires, shouting and singing, unable to advance to town beyond the line of police. And yet eight people were shot dead by police in Kisumu on January 16, including a ten-year-old boy playing outside his home.[96]

Police Shootings in Nairobi Slums

While events in Kisumu present one of the clearest examples of excessive use of force by police, what happened there was not unique. Police in Nairobi also shot demonstrators under circumstances that were clearly unjustified.

From the beginning of the disturbances on December 28 and 29 when it became clear that the announcement of Kibaki as president had sparked trouble, the police strategy seemed to be, as in Kisumu, to contain the protesters in the slum areas of Mathare, Kibera, Dandora, Kariobangi, and others. Witnesses and victims alike confirmed to Human Rights Watch that the protestors were unable to leave the slums because of police interventions, often brutal and fatal.[97] Kenyan television stations carried scenes of police firing tear gas and live ammunition to disperse protesters in the narrow twisting alleyways of the slums day after day throughout January.

Local human rights workers in one area of Kibera slum recorded nine people shot dead by police and 19 injured between December 27 and January 10.[98] In Mathare, residents reported people shot dead and bodies dumped in the Nairobi river.[99] The Independent Medical and Legal Unit, a respected Kenyan human rights NGO comprising doctors and lawyers, reported around 50 bodies in Nairobi mortuaries in the first half of January, dead from gunshot wounds, most likely killed by the police.[100] 

One young man, a resident of Mathare who was caught up in demonstrations on December 31 and shot by police described his experience to Human Rights Watch:

In the afternoon I went to Gateway to see my brother. At Gateway, I stopped, I saw the GSU [riot police]. There was a fracas with some youth. GSU were advancing. I saw them about 10 metres away. Then I fell down, there was a bullet in my leg, they shot me. I saw one of them aim at me….[101]

The use of live rounds in Kibera and Mathare slums, some of the most densely populated areas in the world, was highly irresponsible and caused death and injury to many innocent bystanders. Slum dwellings are made of wood, sacking, and tin sheets, easily pierced by bullets. One woman was hit in the chest at 8 a.m. in the morning on December 31 as bullets came through the wall of her home.[102]  Another man was shot and killed the same day when he opened the door of his home to see what was going on in Kibera, as a worker at the local mosque told Human Rights Watch:

On [December] 31 at 9 a.m. on Karanja Road, I was carrying wounded people who had been shot by police. A young man opened the door of his house to see what was going on. Police aimed at him and shot at him three times. The first two missed, but the third bullet got him.[103]

The policeman responsible for the latter killing, which was clearly deliberate given the repeated shooting, should be held accountable for his actions.

Human Rights Watch also documented cases of policemen hurling canisters of tear gas into families' homes in Nairobi slums; a strategy clearly unconnected to the controlling of crowds or protecting life and property. As one witness told Human Rights Watch:

I saw two men shot in the leg by policemen around 9 a.m. on January 1…. the policemen were threatening people to get out of the way and firing tear gas, they were also firing tear gas into houses, many children were affected, coughing and so on .[104]

[60]Human Rights Watch interviews with District Commissioner J.C. Baregu, Kisumu, January 15, 2008; Provincial Commissioner, Paul Olando, Kisumu, January 15, 2008; and Grace Kaindi, Provincial Police Officer, Kisumu, January 15, 2008.

[61]Kenyan and international law prohibits a general ban on demonstrations. Under Kenyan law, (section 5 of the Public Order Act, 1950, as amended 1997) those wishing to demonstrate must notify the police and the police can reject the request on the grounds of public order, but no law permits the authorities to impose a blanket ban on public assembly. Under the International Covenant on Civil and Political Rights, which Kenya ratified in 1972, a state may only impose restrictions on the right to peaceful assembly that are strictly necessary to maintain public order. This rules out widespread, nationwide bans on demonstrations.

[62]Human Rights Watch interviews with police officials, Kisumu and Nairobi, January 2008.

[63] The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials call upon law enforcement officials in the dispersal of violent assemblies to use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Lethal force may only be used when strictly unavoidable to protect life and only when less extreme means are insufficient to achieve these objectives.

[64]Ibid.

[65]Human Rights Watch interview, policeman (name withheld), Nairobi, January 9, 2008.

[66] Human Rights Watch interviews with victims and unnamed policeman, Eldoret, January 17 and 18, 2008 and victims in Molo, February 18, 2008.

[67]Human Rights Watch interview with Muslims for Human Rights officials, Mombasa, by phone, January 10, 2008. See also, BBC, "Scores dead in Kenya poll clashes," BBC Online, December 31, 2008, (accessed, March 5, 2008).

[68] Human Rights Watch interviews, January 2008.

[69]Ibid.

[70]Human Rights Watch interview with 'The Standard' journalist, Eldoret, January 11, 2008, and Human Rights Watch interview with human rights activists, Eldoret, January 19, 2008.

[71]For a good summary of deaths involving the police, see The Sunday Standard, February 17, 2008.

[72] Human Rights Watch interview with police spokesman, Nairobi, January 23, 2008.

[73]The Sunday Standard, February 17, 2008.

[74]Gideon Mutai, LSK branch chair for South Rift told The Standard: 'The number of those gunned down could be more than 100 as most of them are not documented.' See Vitalis Kimutai, "Quiet burial for victims of police brutality," The Sunday Standard, February 17, 2008.

[75]The Sunday Standard, February 17, 2008.

[76]Human Rights Watch interviews, Nyanza General Hospital, Kisumu, January 14, 2008.

[77]Human Rights Watch interview with the police spokesperson, Nairobi, February 21, 2008.

[78]Human Rights Watch interviews, Kisumu, January 2008.

[79] Human Rights Watch interviews, Kisumu, January 2008.

[80]Human Rights Watch interviews with District Commissioner J.C. Baregu, Kisumu, January 15, 2008; Provincial Commissioner, Paul Olando, Kisumu, January 15, 2008; and Grace Kaindi, Provincial Police Officer, Kisumu, January 15, 2008.

[81]Human Rights Watch interview, Grace Kaindi, Kisumu, January 15, 2008.

[82] Human Rights Watch interview with District Commissioner J.C. Baregu, Kisumu, January 15, 2008 and Grace Kaindi, Provincial Police Officer, Kisumu, January 15, 2008.

[83] Human Rights Watch interviews with ODM official and ODM elected councillor, Kisumu, January 14, 2008, and ODM records, on file with Human Rights Watch.

[84]Human Rights Watch interview with J.C. Baregu, Kisumu, January 15, 2008.

[85]Human Rights Watch interview (name withheld), Kisumu, January 16, 2008.

[86]Human Rights Watch interview (name withheld), Kisumu, January 16, 2008 and Human Rights Watch interview with Reverend Joe Asilia, Kisumu, January 15, 2008.

[87]Human Rights Watch interview (name withheld), Kisumu, January 16, 2008.

[88] Human Rights Watch interview (name withheld), Kisumu, January 16, 2008.

[89] Human Rights Watch interview (name withheld), Kisumu, January 16, 2008.

[90]Human Rights Watch interview with Grace Kaindi, Kisumu, January 15, 2008.

[91]Human Rights Watch interview with Julianna Otieno, Medical Superintendent, Nyanza General Provincial Hospital, Kisumu, January 14, 2008.

[92] Human Rights Watch interviews (names withheld), January 15, 2008.

[93] Ibid.

[94] Human Rights Watch interview with Provincial Police Officer Grace Kaindi, Kisumu, January 15, 2008.

[95] On January 15 Grace Kaindi, the Nyanza PPO, told Human Rights Watch, "We are not preparing we are prepared. We will just restrain them [the protesters]."

[96]Human Rights Watch interview with hospital staff, Nyanza General Provincial Hospital, Kisumu, by phone, January 17, 2008.

[97]Human Rights Interviews, Nairobi, January 2008.

[98]Human Rights Watch interview with human rights activists (names withheld), Nairobi, January 14, 2008, list on file with Human Rights Watch.

[99] Human Rights Watch interview (name withheld), Nairobi, January 9, 2008.

[100]Human Rights Watch interview with IMLU officers, Nairobi, January 9, 2008.

[101]Human Rights Watch interview (name withheld), Nairobi, January 10, 2008.

[102]Human Rights Watch interview (name withheld), Nairobi, January 9, 2008.

[103]Human Rights Watch interview (name withheld), Nairobi, January 10, 2008.

[104]Human Rights Watch interview (name withheld), Nairobi, January 10, 2008.