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Court: Inspector General of Police can be held liable for police brutality

National
 Inspector General of Police Douglas Kanja.[Standard, File]

The High Court has ruled that the Inspector General of Police can be held criminally liable for atrocities committed by junior officers under his command.

In a landmark judgment delivered by Justice Jairus Ngaah, the court addressed a case filed by the Katiba Institute last year. The case challenged a directive issued by former Inspector General Japheth Koome, which instructed police to handle protesting doctors "firmly and decisively".

This directive was linked to a violent crackdown on peaceful protests by medical professionals, raising serious concerns about police brutality and violations of fundamental freedoms guaranteed by the Constitution.

The court has now authorised civil society organisations to sue the former Inspector General for sanctioning the use of excessive force against striking medics in early 2024.

Koome’s orders, urging officers to deal "firmly" with the medics, resulted in the torture of medical professionals, including officials from the Kenya Medical Practitioners and Dentists Union (KMPDU).

National Police Service (NPS) officers used unlawful force against KMPDU official Dr Davji Attela and other medics who were picketing near the Ministry of Health headquarters, Afya House, on February 29, last year.

Civil society groups, including the Katiba Institute, International Commission of Jurists (ICJ), Transparency International, and Muslims for Human Rights (MUHURI), sought to sue Koome personally for suspending the constitutional rights of health workers during these protests.

The organisations argued Koome’s orders violated Articles 36, 37, and 41 of the Constitution, which guarantee the right to strike, to picket peacefully, and to be free from unlawful detention.

Justice Ngaah criticised Koome for issuing these orders weeks after the strike had already commenced and following the violent disruption of a KMPDU demonstration.

“The decision of 14 April 2024, made weeks after the respondent (Koome) violently disrupted the KMPDU members’ demonstration without justification, qualifies as outrageous in its defiance of logic or accepted moral standards,” Justice Ngaah stated.

The judge further noted the directive lacked procedural fairness, as the medics were not given an opportunity to be heard before the order was issued, thereby violating their rights.

Justice Ngaah affirmed that Koome could be held personally accountable for the actions of National Police Service officers under his command, invoking the doctrine of command responsibility.

“The IG NPS (Koome) or other superior officers are personally liable under the doctrine of command responsibility for issuing unconstitutional orders and directives to officers under their command to use unlawful force to disperse peaceful and unarmed protests and pickets,” Justice Ngaah ruled.

The judge also criticised Koome’s failure to investigate or discipline officers who violated the Constitution by using unlawful force, contrary to the provisions of Articles 36, 37, and 41.

As a consequence, Justice Ngaah ordered Koome to investigate and discipline the officers involved in the unlawful actions. Those to be investigated include the Kilimani Police Commander at the time, the officer in charge of Capitol Hill Police Station in Nairobi, and any others responsible for the excessive use of force against Dr Attela.

Koome resigned in July 2024 amid heavy criticism for his inability to control police officers who used excessive force against largely peaceful protesters, particularly from the Generation Z movement.

Justice Ngaah also ruled that Koome must compensate civil society organisations for the costs incurred in seeking justice for Dr Attela and other medics. Additionally, Koome is required to pay damages to KMPDU leaders for injuries sustained during the crackdown.

While the judge acknowledged that Dr Attela should be compensated for his injuries, he was unable to determine the exact amount due to insufficient evidence on the extent of the injuries.

“The applicants (Katiba Institute, MUHURI, ICJ, among others) shall have the costs of the suit, which will be paid by the respondent (Koome) personally, from his own resources. It is so ordered,” Justice Ngaah concluded.

 

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