Fix loopholes that facilitate unlawful killings

Last week, Milimani Chief Magistrate Francis Andayi found a police officer culpable for the death of a 20-year-old who was shot in Nairobi’s Huruma estate. Police had claimed that the death of Nura Malicha Molu in February 2015 resulted from a botched robbery.

However, investigations by the Independent Policing Oversight Authority (IPOA) that started over a year later and a subsequent inquest revealed many inconsistencies that led to the court’s conclusion that the officer was culpable, and that his police station may have been covering up the truth.

The inconsistencies included conflicting testimony by the officers such as lying that they called an ambulance to assist the victim; the fact that the alleged robbery was never reported and that material evidence such as the weapon Nura was alleged to be carrying, money and a stolen phone were never preserved and presented for analysis and as exhibits.

The court also directed that the inquest file be forwarded to the office of the Director of Public Prosecutions. Though the findings are welcome from a justice and accountability point of view, it is sad that this has come six years after the killing.

Kenya’s quest for police accountability has been a long journey that has occasioned several policy changes designed to ensure that police do not investigate themselves and suspicious deaths are subjected to proper and professional scrutiny by independent eyes.

Ideally, the Nura case should have occasioned the immediate involvement of IPOA as per Part 5 of the Sixth Schedule of the National Police Service Act which dictates that any use of force leading to death, serious injury or other grave consequences must be reported immediately to the IPOA to investigate. This does not happen in practice because IPOA often learns about these incidences via the media, families of the victims or the public.

In cases where the use of force results in injury, Part 3 of the same Schedule requires police officers present to provide medical assistance immediately unless there are good reasons. Their responsibility and legal obligations include notifying relatives or close friends of the injured or affected persons. It is noteworthy that failure to do so is a criminal offence. 

Another law meant to prevent tampering of evidence is the National Coroners Service Act (NCSA) of 2017 which creates a coroner’s service mandated to investigate all mysterious deaths especially at the hands of the police, the military, among others, and transmit a report to IPOA.

Sadly, the law, is yet to be put into operation due to a lack of political will and clarity regarding which Cabinet Secretary should set up the Service and secretariat. The Coroner Service is meant to collect forensic and other evidence from the body and scene of a crime, preserve, and analyse it as may be necessary.

Human rights organisations have raised concern that there could be a conflict of laws with regards to the legal framework for inquests; the role of IPOA and the police in cases where police officers are persons of interest; and the failure to implement and put into operation the NCSA.