EXTRAJUDICIAL KILLINGS IN KENYA: A Colossal Vermin In The Justice System

extra-judicial killings in Kenya
extra-judicial killings in Kenya

By Ngetich Abadnego Kipngeno

July 1st, 2016, that is the day when the dead bodies of the human rights lawyer; Willie Kimani, his client; Josephat Mwendwa and that of their driver; Joseph Muiruri were discovered in the Ol Donyo Sabuk River.

When this news went viral, there was a public outcry condemning the persons behind their deaths. Demonstrators; especially in Nairobi led by the legal profession fraternity, came out in large numbers to protest against extrajudicial killings. Not more than one year later, a video went viral in the social media

Not more than one year later, a video went viral in the social media and was even aired also in the local television stations showing a person allegedly to be a police officer shooting and killing two people in Eastleigh in a broad day light as the people watch. This attracted mixed reactions from the public; especially in the social media, where some people termed this as an extrajudicial killing while other supported this incident. Though the Inspector General of Police, Joseph Boinett appeared to be concerned, his junior; Nairobi Police boss Japheth Koome appeared to condone and supporting the incident.

These are not the only incidents where there have been enforced disappearances and extrajudicial killings witnessed. There have been many such incidents in the past. For instance, this has been common in the coastal part of Kenya. Haki Africa; a human rights group states that for the first eight months of 2016, it has documented 78 cases of enforced disappearance and extrajudicial killings

Haki Africa; a human rights group states that for the first eight months of 2016, it has documented 78 cases of enforced disappearance and extrajudicial killings done by the Kenyan Police.

On the other hand, Amnesty International has stated that the Security forces have carried out enforced disappearances, extrajudicial executions, and torture with impunity, killing at least 122 people by October 2016. It further states that all these activities have been carried out in the name of counter-terrorism operations. These are just but few examples to demonstrate the extent and the level of extrajudicial killings in Kenya. That truth is that there may be many figures and even more cases than this. Some or many of them are always undocumented, while others are unreported.

This has been a worrying trend especially in this country; where we have an elaborate Constitutional Bill of Rights. The state has failed to give a proper attention to fight this increasing menace.

Extrajudicial Killings from a Legal Perspective

Before I proceed to have a look at this subject in a legal perspective, there is need first of all to understand what “extrajudicial killings” means. The Black’s Law dictionary defines the word extrajudicial to mean outside the court or outside the functioning of the court system.

This means it is an activity done outside the corridors of justice. Extrajudicial killing would thus involve an element that the killing is done or executed without the involvement of the due process of law. The legal definition of the word extrajudicial killing is as follows, “a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”In addition to this, the court stated that the deliberate killing must be done by a state actor (state action requirement must be satisfied.)

It thus can be said that for an act to be considered extrajudicial killing, the following elements must be satisfied: firstly, it must be done outside the functioning of the court system, secondly, not authorized by any written law; and thirdly, the killer or assailant must be a government agency or state actor (in our instance case the police or armed forces of the government). All these three elements must exist at the same time. That is to say, if one element is in existence to the exclusion of others, then the killing will not be considered as extrajudicial killing. It may be something like murder or homicide because they always happen outside the court and are not sanctioned by law. Therefore, the distinguishing element between murder and extrajudicial killing is that the latter is done by the government agency without due process of law.

In Kenya, there is no specific legislation which either specifically or expressly prohibits extrajudicial killing, neither does the law define it. The Penal Code Chapter 63 Laws of Kenya and the Constitution of Kenya, 2010 shall only apply to the extent that it involves the taking of one’s life without the due process of law involved; which operates contrary to the two laws……READ FULL ARTICLE  ON THE APRIL EDITION

[1]      See Fred Mukinda and Eunice Kilonzo, Missing lawyer Willie Kimani, taxi driver found dead in Ol-Donyo Sabuk (as of 1 July 2016), <http://www.nation.co.ke/news/Missing-lawyer-found-dead-in-Ol-Donyo-Sabuk/1056-3275428-yu0l3yz/index.html> at 12th April, 2017.

[2]      See Jason Burke and Murithi Mutiga, Kenyans protest over alleged extrajudicial killings of trio by police (as of 4 July 2016), < https://www.theguardian.com/world/2016/jul/04/kenya-protest-nairobi-alleged-extrajudicial-killings-willie-kimani> at 3rd April, 2017

[3]      Social media includes but not limited to Facebook, twitter and WhatsApp.

[4]      See Cyrus Ombati, Policeman among 9 people killed in Nairobi as video shows officers felling suspects (as of 1 April 2017), <https://www.standardmedia.co.ke/article/2001234704/policeman-among-9-people-killed-in-nairobi-as-video-shows-officers-felling-suspects> at 3rd April, 2017.

[5]      Ibid.

[6]      See Rael Ombuor, Kenya NGO Releases Extrajudicial Killings Report (as of 7 December 2016), <http://www.voanews.com/a/kenya-nongovernmental-organization-releases-extrajudicial-killings-report/3627108.html> at 3rd April 2017. The person mostly targeted in the coast are the Muslims who are alleged to be part of the Somali-based terrorist group; Alshabab.

[7]      See Amnesty International, Kenya 2016/2017 (as of 2017), <https://www.amnesty.org/en/countries/africa/kenya/report-kenya/> at 12th April, 2016.

[8]      Ibid.

[9]      Bryan A. Garner, Black’s Law Dictionary (9th ed 2009) 665.

 

[10]    See United States Torture Victim Protection Act of 1991 (enacted March 12, 1992), s 3(a).

[11]    See Sinaltrainal v Coca-Cola Co. 578 F.3d 1252 ,1258(11th Cir. 2009).

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