By Isabella Obara & Sarah Nyakio
In 2017, Kenyans exercised their Civic duty and took part in the General elections. When the presidential results were announced on August 11, 2017 tensions were heightened. This worsened when the repeat elections took place on 26th October 2017. During this interlude, the National Police Service (NPS) deployed police officers in various parts of the country to undertake crowd control and riot management.
The deaths, violations and shocking use of force continue to haunt us to date! During this interlude somewhere in In Migori county, those who survived death by a whisker bullet lived to have their day in court.
The Interlude
On August 12, 2017, at around 11 am in Komire Bridge, N.N. was peacefully walking home from Rongo Shopping Centre when she was shot by police officers. NN’s stroll back home turned bloody leading to a bullet wound on her left thigh and loss of an incisor tooth. It is confirmed that NN was unarmed and peaceful at the time. She was rushed to Akidiva Memorial Hospital where she underwent a procedure to remove the retained bullet.
On October 13, 2017, at 5 pm along Sirare Road, a minor was peacefully riding a motorcycle back home when armed police officers shot at him without any provocation. The minor from Kiongongi Secondary School was beaten and shot at close range and was left for dead. A good Samaritan E.O. rushed him to Pastor Machage Hospital where he received first aid and was admitted. Upon discharge, he continued to receive medical support from Ojele Memorial Hospital and continues to suffer from the injuries inflicted on him flagrantly in 2017.
On 26th October 2017, a 57-year man strolled out at 3 pm for a stretch at the Namba Market Centre within Migori. Without any provocation, he was shot by uniformed police officers in his right thigh. This is after the police officer has shot at him and missed then aimed and fired directly at him for the second time. He found himself at Akidiva Hospital having undergone a theatre procedure of excisions of the bullet lodged in his thigh.
On 27th of October 2017 at around 5 pm, while walking home from work, the petitioner was shot on both thighs by uniformed police officers. The police officers were hiding at Pebo Petrol Station when N.O. suddenly heard gunshots and immediately felt numb and fell to the ground.
Good Samaritans rushed him to St. Joseph’s mission hospital Ombo where he was admitted and discharged three days later. Later in the day after his discharge, he was rushed back to the hospital at Oruba Nursing Home where he was admitted. The medical officer continues to suffer untold pain subject to the injuries sustained in 2017.
The cases of the four petitioners are a representation of the many persons whose right to security, human dignity and freedom from torture was violated by agents of the National Police Service in 2017. The loud silence in addressing violations stemming from post-election violence has inured the electorate to the violence and mistrust in all judicial processes.
Petition 8 of 2021
Given IMLU’s mandate, on various dates between 2017 November and November 2021, IMLU undertook medico-legal circuits to fact-find and conclude legal documentation.
Upon conclusion of the documentation, IMLU partnered with Counsel Okelloh Micheal to file a constitutional and human rights petition on behalf of the 1st, 2nd, 3rd and 4th Petition’s violations.
On 29th November 2021, Constitutional Petition 8 of 2021 was filed at the Migori High Court. The basis of the Petition was the;-
1. Violation of Human dignity and security of the person.
2. Violation of the Right to freedom from Torture, cruel, inhumane, and degrading treatment.
3.Violation for the freedom from all forms of violence and punishment from both public and private entities; (use of unjustifiable excessive force)
The Petitioners sought declarations of the violations as well as special damages.
Court’s determination
The trier of fact upon weighing the petitioners, respondents and interested party’s case found that;-
1. The use of force and firearms was unlawful and unjustified and it violated the petitioner’s right to freedom and security of the person especially the right not subjected to any form of violence from public or private sources.
2. The failure and refusal/neglect by the National Police Service to conduct prompt, independent and effective investigations of the police’s unjustified violence is a violation of the positive obligation of the state to investigate and prosecute violations upon obtaining an OB number.
3. A declaration that there was a violation of the petitioners’ rights to human dignity and security of the person as per articles 28 and 29 of COK,2010 respectively.
These declarations were accompanied by an award of KES.1.5 M per petitioner and the special damages as pleaded.
A further award of KES.3,000,000 was awarded to each petitioner as per the court’s discretion for the continued pain, loss, and damage.