Should the police “shoot to kill” suspected criminals to counter the high security threats in the country?

In the face of increased insecurity in the country over the recent months resulting in loss of many innocent lives, physical and emotional trauma among other impacts, the National Police Service (NPS) has devised strategies to combat crime. Whereas most of these strategies are lawful and acceptable, our attention has been drawn to directives issued by senior police officers ordering police officers to ‘shoot-to-kill’ suspected criminals. Appreciating the challenging task facing our security forces in guaranteeing security in the face of violent criminality especially terror-related and other related crimes police will inevitably be required to use force on occasion, and sometimes lethal force in order to protect life.

It is however important for police officers in particular and Kenyans in general to understand the circumstances under which a police officer is legally allowed to use force and firearms (lethal) in executing his/her duty.

When should police officers use lethal force or firearms while combating crime?

Section 1 Part A of the Sixth Schedule of the National Police Service Act 2011 sets out the rules and procedures on use of force and firearms by police officers. The schedule states that:

  1. A police officer shall always attempt to use non-violent means first and lethal force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result
  1. The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.
  1. Firearms or lethal force may only be used when less extreme means are inadequate and for the following purposes—

ü Saving or protecting the life of the officer or other person; and

ü In self-defense or in defence of other person against imminent threat of life or serious injury.

  1. An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed, except;

ü where doing so would place the officer or other person at risk of death or serious harm; or

ü If it would be clearly inappropriate or pointless in the circumstances

  1. A police officer shall make every effort to avoid the use of firearms, especially against children.

Note: Any use of firearms outside the ambit of the instances provided above amounts to unlawful use of firearms and in case of deaths, extrajudicial executions.

WHAT IS AN EXTRAJUDICIAL EXECUTION?

Extra-Judicial Executions are planned executions committed by governments or government-backed agents with a total lack of regard for due process of law and/or judicial procedure as protected in the law. Kenya is a party to both the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights. International law prohibits the “arbitrary deprivation of life”, and obligates governments to both “respect and ensure” the right to life.

Article 238(2) of the Constitution of Kenya, states that national security shall be promoted and guaranteed in accordance with the principle of compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms. In common parlance the police while implementing their mandate should uphold the principles set under the bill of rights where the right to life is protected under article 26(2) that states that a person shall not be deprived of the right to life intentionally, except to the extent authorized by this constitution or other written law 

WHAT ARE THE POSSIBLE EFFECTS OF THE SHOOT TO KILL ORDERS?

Killing of innocent people: The laws of Kenya assert that a person is innocent until proven guilty by a court of law. Any shoot to kill order would undermine this presumption and most critically may result in the killings of innocent persons as has been evidenced and documented variously in reports and courts judgments.

Proliferation of more militarized criminal gangs: Responding to crime and insecurity by using force would most likely see the proliferation of more militarized criminal gangs, increased gang wars and infiltration of more sophisticated illegal arms in the country. This is because such action would alienate and threaten public relations and hence a reluctance by members to share crucial information they may be having. Further the gangs would employ retaliation tactics as common in a state where the rule of law is violated.

Police officers individual liability: Police officers who follow directives on use of force not in line with the abovementioned provisions shall face individual disciplinary action or prosecution for unlawful use of force where it amounts to a criminal offence despite the fact that they were acting pursuant to a purported superior order.

 

WHAT SHOULD YOU DO IN CASE YOU ARE A WITNESS TO EXTRA JUDICIAL EXECUTIONS?

You are legally and morally obligated for the sake of the victims, community and the betterment of policing, to make a statement to the following institutions with clear details about the incident covering noting that this information will be upheld in utmost confidentiality:

  • The date and the time ofthe incident
  • The police service number of the officer(s) if displayed, name if known, gender etc
  • In case of a vehicle, the registration number and any other details on the vehicle
  • Witnesses to the incident if any
  • Any other details.

ALL INFORMATION RECEIVED WILL BE TREATED AS CONFIDENTIAL.

Name Of Institution Telephone Numbers Email Address Physical Address
Independent Policng Oversight Authority (Ipoa) 0725 327 289

020 4906000

[email protected] Ack Garden Annex 2nd Floor Along 1st Ngong Avenue
Kenya National Commission On Human Rights 0724 256 448 [email protected] Cvs Palza, Kasuku Lane Off Lenana Road
Internal Affairs Unit 020 2221969 [email protected] Director Internal Affairs Unit Jogoo House "A" Ground Floor,West Wing

P.O Box
44249-00100 Nairobi

Police Reforms Working Group 0734520500 [email protected]