The Law Enforcement Agencies Must Adhere to the Basic Checklist on Human Rights and Fundamental Freedoms

The attention of the Kenyan National Commission on Human Rights (KNCHR) has been drawn to the heart-rending clips and images circulating on social media, clearly showing uncalled for brutality and ruthless beating being meted on innocent and defenceless Kenyans by uniformed police officers and other law enforcement officers following the start of the much touted dusk to dawn curfew across the country. It is pitiable and despicable to watch the video clips of uniformed law enforcement officers, who are deemed to be custodians of law and order, incessantly bludgeoning innocent and unarmed Kenyans, especially in Mombasa, at the entrance of the Kenya Ferry Services and other parts of the country. Indeed the enforcement of the Covid-19 pandemic curfew directives should not be a ticket to unleash terror.

The gusto, attitude and zeal in which the law enforcement officers were seen harassing and beating innocent members of the public; that included vulnerable persons like women, defeated the solemnity in which they need to handle the mitigating measures of spreading COVID 19. Equally critical actors such as journalists and other essential service providers like drivers of food supplies were not spared in this sheer brutality. That, the law enforcement  officers are seen isolating innocent members of the public solely for purposes of inflicting bodily harm to them is a total abuse of basic human rights and fundamental freedoms as enshrined in our Constitution. In this instance the police officers are in total breach of peace, failed to protect the innocent and their actions have the potential of further spreading the novel Corona virus. 

KNCHR would have expected the law enforcement officers to treat the home-goers in a humane manner and respect their rights and dignity as dictated by the law and even facilitate orderly observance of the curfew timings. Members of the public must not be subjected to torture, cruel, inhuman or degrading treatment or punishment as evidenced in the police officers’ actions seen in the social media video clips. The Police officers and law enforcement officers must proactively and in a professional manner work towards helping to defuse tension and preventing dangerous escalations and especially during this period of observing containment of the novel Corona virus through social distancing. The melee caused by the law enforcement officers defeats this purpose.

The Commission further reiterates that any human rights violations or abuses in the context of enforcing the curfew by the law enforcement officers must be investigated promptly, thoroughly and impartially. Victims should be provided with access to remedy and redress for such violations and abuses through judicial, oversight body or other national mechanisms, based on law and in conformity with human rights obligations and commitments.

KNCHR reiterates its advisory issued on 17th March 2020 where it stressed the importance of safeguarding human rights at all costs during all COVID-19 responses.  Pursuant to Article 59 of the Constitution, Section 8 of the KNCHR Act and Section 12 of the Prevention of Torture Act the Commission thus directs as follows;

1. THAT the bill of rights as encapsulated in our Constitution HAS NOT BEEN suspended during this pandemic and every person is still entitled to his/her fundamental rights and freedoms. In the event of any limitation to any right, then the proper constitutional and legislative provisions as provided for under Article 24 of the Constitution and Part IV of the Public Order Act must be followed to the letter.
2. THAT even in the event of limitation of rights, the freedom from torture, inhuman and degrading treatment is non-derogable and cannot be wished away by any person.
3. THAT respect for human rights, Rule of Law and Access to Justice are critical and essential in combating the COVID-19 pandemic. All actors both State and non- State actors are hence bound by the tenets of our Constitution and the various regional and international human rights instruments which Kenya is a signatory.
4. THAT all officers under the National Police Service are bound by the cardinal rules and principles of Article 238 and 244(d) of the Constitution to protect the rights of all and further the legislative obligations under the sixth schedule of the National Police Service Act and Section 14 of the Public Order Act on the use of force. 
5. THAT the Government directives on COVID-19 more specifically social distancing and reasonable distance between persons must be respected by ALL including the police during arrests, crowd control and detentions.  

In view of the prevailing, the KNCHR therefore Calls Upon:

1. The Inspector General of Police, as a matter of urgency, to fast-track the issuance of guidelines with regard to handling members of the public during this COVID 19 pandemic period and enforcement of the dawn to dusk curfew. These guidelines should call on all law enforcement officers to abide by the law and the Service Standing Orders in the arrests and handling of arrested persons. Further the Inspector General to direct all officers to desist and avoid situations of compromise, unwarranted deprivation of the right to security and liberty of the person, harassment and extortion of Kenyans. 
2. The immediate investigations and prosecutions of all officers culpable of the human rights violations witnessed yesterday,
3. The Inspector General of Police issues an immediate directive on zero tolerance to human rights violations by all law enforcement officers to avert further deterioration and perpetuation of human rights violations,
4. Employers to put in place mechanism to ensure that their staff have ample time to ensure the curfew timings are adhered to,
5. The Government to put in place mechanisms to cushion the vulnerable and persons from the lower income bracket that still have to fend for their families despite the prevailing risk of the COVID-19 and
6. All members of the public to play their civil responsibility in adhering to the directives given by the Government to ensure as a country we flatten the curve on the COVID 19 in Kenya.

Respect for human rights, rule of law and access to justice are critical and essential in combating the novel Corona virus pandemic. Thus, the Kenya National Commission on Human Rights in exercise of its mandate under Chapter 4 and Article 59 of the Constitution shall be monitoring the enforcement of the curfew to ensure compliance with human rights principles and standards. 

While KNCHR fully supports the Government’s response mechanisms and measures of dealing with the COVID 19 pandemic, KNCHR reiterates that observance of human rights and fundamental freedoms is cardinal. KNCHR applauds the media, members of the public and human rights defenders for courageously capturing the violations witnessed yesterday. 

The Kenya National Commission on Human Rights invites members of the public with information on the illegal law enforcement officers’ actions and/or the affected person(s) to contact the Commission via:  Mobile: 0741 584 608 / 0721 519 715; WhatsApp number: 0798 849871   Email: complaint@knchr.org; haki@knchr.org; Twitter:@hakiKNCHR; Facebook- facebook.com/knchr.org; KNCHR SMS: 22359. 

Dr. Bernard Mogesa, PhD, CPM
Secretary to The Commission/Chief Executive Officer