Why Kenya must stand up to and end torture by police

Why are Kenyans torturing each other? Why are the police, who are fellow citizens, consistently and systematically escalating the use of torture as a tool of policing when the world has been frowning upon it for the last 60-odd years?

The distressing acceleration of police torture, forced disappearances, and extrajudicial killings has dominated the national conversation in the last few months. But we, the people, only appear helpless or complicit.

A few days ago, Kamanda Mucheke, a human rights defender and deputy director at the Kenya National Commission for Human Rights (KNCHR), wrote about two of the victims of torture in an attempt to raise awareness among his followers about the mysterious reappearance of the Kitengela three.

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“They are deeply traumatized after enduring a month of terror and severe physical and mental torture. They were held incommunicado, stark naked throughout, while shackled to a metal hook mounted on the cell floor. They were allowed only one small glass of water per day, as well as irregular meals. The cells contained a small tube for them to relieve themselves in. Remember not to forget.”

Bob Njagi, who also experienced kidnapping, dehumanizing conditions, and torture, shared similar experiences. In the case of the Kintengela three, hooded police officers yanked the abductees off public transport, leaving them missing for a month without any indication of their location, custody, or conditions. Relatives and friends suffered pain, agony, and anxiety of not knowing what had become of them. Suddenly, as the court sat to hold contempt proceedings against Gilbert Masengeli, the then-acting Inspector General of Police, it was reported that the three abductees had been dropped off at a location in Kiambu.

Surprisingly, there hasn’t been enough public outrage about this. Yet no one in Kenya today can say they are immune to our police's savage tactics. This certainly is not how we want to live in a constitutional democracy. The police have always denied the kidnapping and torture allegations, but Kenyans know better. The stomach does not announce when it is hungry. The Kenyans, Bob Njangi, and the Longton brothers need all our love and support. But, as they say, the North remembers, so the story of the activists will form the record of how the Ruto regime consolidated power after the memorable Gen Z riots.

Kenya is no doubt in a disturbing mood over these happenings. There is a collective sense of trauma and rage as the police continue to brutalize and torture innocent people, including high school and college students. This is not the environment we, and even the police, want our children to live in.

Oust use of black holes

There is no doubt that the world abhors torture, having passed the United Nations Convention Against Torture (UNCAT) in 1984. The convention illegalized torture, making freedom from torture a non-derogable right, meaning that no polity can walk away from it. As it is, despotic regimes have used despicable methods to circumvent the ban. In dictatorial Eastern Europe, for instance, dictators formed the habit of establishing clandestine spots for torture by secret police and other state agents. Worse, western democracies, afraid of criticism for condoning torture at home, have collaborated with the black hole conspirators to gain access to the underground areas of torture abroad. 

It is a well-known fact that certain nations, including the US and Britain, who claim to be champions of liberty, have kept some of these "black holes" in places like Guantamo Bay in Cuba, where they use torture as a tool of trade. Dissidents and terrorists would endure horrific torture and interrogation in these "black holes," despite domestic laws prohibiting such practices. In Kenya, police torture persists domestically, and it's crucial to expose and disrupt these black holes.

Every moment of political progress in Kenya's history has been characterized by experiences of torture. However, the Constitution 2010 remains a beacon and bulwark. Throughout Kenya’s post-colonial history, university students, lecturers, and social critics have faced all forms of torture for their criticism of the government. For instance, serious episodes of torture marked the state’s response to the political turmoil that followed the attempted coup of 1982.

The Nyayo House torture chambers rounded up hundreds of citizens, tortured them, and kept them under inhumane conditions. This period effectively marked the state's deliberate decision to establish a torture infrastructure that remains intact to this day. Many Kenyans still vividly recall the gut-wrenching and harrowing stories from survivors of the Nyayo House torture chambers.

It was during the 2002 transition from the KANU regime to the Kibaki administration that Kenya seriously faced the challenge of torture. The Mungiki Central Kenya gangs and the Mombasa Republican Council managed to contain police torture and deaths, but over time, the wider population has come to despise torture and feels ashamed of it.

Evidence obtained through torture is legally inadmissible in Kenya's criminal proceedings. The Police sixth schedule, as well as Section 95 of the National Police Service Act, prohibits the use of torture by the police to obtain information from suspects. These measures, along with the subsequent amendment to the Evidence Act, aim to discourage the police from using torture to extract confessions from suspects. In retrospect, this law has unintentionally escalated the use of torture as a means to an end. In times of political instability, state agents resort to extreme measures like abductions to torture, harm, and kill perceived enemies of the state, without any possibility of accountability.

To combat torture, Kenya must take several steps. Aside from the Convention, which Kenya has ratified, there is the Optional Protocol to the Convention against Torture, which establishes an international inspection system for detention places. It is time to adopt this protocol. Besides, use of torture by police—outrightly banned by law but exceedingly typical—should legally constitute gross misconduct in the service, the basis of which the National Police Service Commission ought to dismiss officers and have them face the full force of law.

The author is an advocate of Kenya's High Court