Policing Conflict: Post-Election Violence in Kenya

If there was any doubt about the urgent need for police reforms in Kenya, their response to the violence that erupted after the 2007 national election is proof of the critical need for change. Policing during the post-election violence was characterised by excessive use of force, extra-judicial killing, politicisation and, in some districts, acquiescence to violence or a complete failure to intervene. Officers were used as instruments of the state to brutally suppress democratic freedoms, including the rights of speech, assembly and political association. In the advent of a power sharing agreement between the two main opposing parties and the return of relative stability to the capital, there are renewed calls from the international community and Kenyan civil society for investigation into the role of the state and its institutions in the post-election violence and a meaningful commitment to reform. Given the concerns about police response to the violence, and its historical role as a tool of the regime, the time is now for Kenya to make constitutional, legislative and institutional reform to its police force. This reform is vital for long term peace and stability in Kenya.

2007 National Election
On 27 December 2007, the people of Kenya voted in national elections. As expected, the poll was closely contested by the incumbent, President Mwai Kibaki and the leader of the Orange Democratic Movement (ODM), Mr. Raila Odinga. It was a largely peaceful voter turn out in a country with a history of post-independence election violence. However, the relative peace of the day was shattered in the minutes following the announcement that Kibaki had been returned to office. Spontaneous violence erupted in the slums of Nairobi and Kisumu amid allegations of vote rigging.

These first instances of looting and burning by groups of young men was followed by months of organised violence and co-ordinated retaliation which pitted various ethnic groups against each other. As the violence became less spontaneous and increasingly orchestrated, it was apparent to observers that while the election results may have been the instigator, it was ongoing issues of ethnic tension, land distribution, poverty and impunity that continued to fuel it. By the end of February 2008, it was estimated that 1,200 people had died and hundreds of thousands became displaced, both internally and across the border in Uganda.

Police Response
Reports by media and non-government organisations in Kenya paint a dire picture of policing during the post-election violence. The Kenyan government’s own estimates are that 10 per cent of the deaths reported during the post-election violence are attributable to the police.

The police response to the clashes varied between regions, from accusations of excessive use of force and extra-judicial killings to acquiescence and inaction. The uneven response is attributable to both illegitimate political interference in policing and general concerns about police competency. A report by Human Rights Watch (HRW) notes that police were ‘quick to resort to lethal force’ in areas inhabited by opposition supporters but failed to intervene in the face of ‘pro-government mobs killing and burning’. The report also suggests that the uneven police response reflects the general issues of ‘capacity and competency’ within police ranks.

A United Nations Office of the High Commissioner for Human Rights (OHCHR) report also expressed concerns about political interference: ‘The OHCHR Mission found evidence to support the allegation that an additional pattern of violence seems to have emanated from the State apparatus. Indeed, credible evidence including witness and victim accounts corroborated by data gathering at hospitals suggests that Kenyan police used excessive force in dealing with the demonstrations which followed the announcement of the election results and to control crowds which, in some cases, had turned violent.’

Where police did take action, HRW reported instances when the police response to maintaining order was disproportionate to the civil disobedience encountered: ‘Police action [in breaking up demonstrations and riots] included the shooting of unarmed protesters and bystanders, including women and children, without any initial attempt to use non-lethal force in situations where there was no apparent imminent threat to life or property’. These findings were also echoed in various national and international media reports. Disturbingly, HRW, OHCHR and a number of news agencies reported that in some regions, police had adopted a ‘shoot to kill’ strategy to policing civil disturbance. The inadequacy of the police response to the post-election violence must also be considered in the context of police training and welfare.

Constitutional and Legal Framework
Unfortunately, the Kenya police response was unsurprising given the constitutional, legislative and institutional framework within which it operates. Mirroring many developing countries formerly under British rule, today’s police force is structured and operates as a colonial force. The modern police force was founded in 1920 and its strategy was to provide protective services to settlers and British-built infrastructure. Despite reforms during the 1940s which expanded police operational capacity, the changes failed to address the underlying philosophy of the police force and it therefore remained a tool of the colonial regime.

Between 1952 and 1960, Kenya experienced a period of emergency during which a number of insurgent groups were brutally suppressed first by the police force and later by the army. When the period of emergency ended in 1960, Kenya moved towards independence from Britain. However, the same police units, structures and officers remained part of the Kenyan police force, maintaining the post-independence police force as a tool of the government. During the 1960s, amendments to the Kenyan Constitution abolished the independence of the police, returning the force to an extension of the civil service under absolute control of the President. This arrangement has given rise to illegitimate political interference into police operations, as described in the context of the post-election violence above.

The Police Act 1961, its regulations and corresponding standing orders govern all aspects of the Kenya police force. The language and focus of the Police Act reflects a colonial regime style of policing described above. The accountability structure is void of a truly independent police service commission or independent civilian oversight mechanism. Accordingly, claims of police brutality and extra judicial killings are not subject to independent investigation and are rarely prosecuted. In the context of the post-election violence, HRW reports that: ‘As of February 4, the police were investigating their own use of force (including cases where there were no fatalities) in 142 cases nationwide. However, as of February 21, only two policemen had been charged with excessive use of force’.

A New Era of Reform?
In the weeks following the outbreak of violence, the international community staged diplomatic intervention - most notably in the successful Kofi Annan-led mediation process. Kibaki and Odinga signed an ‘Agreement on the Principles of Partnership of the Coalition Government’ which, inter alia, maintains the Presidency for Kibaki and establishes a newly created Prime Minister position for Odinga. By April 2008, a new coalition government was formed with cabinet positions occupied by members of both the incumbent party and the ODM.

The new coalition government has also committed to the establishment of a number of mechanisms to investigate and report on the post-election violence. They are:

The power sharing arrangement and the establishment of commissions of inquiry are an important first steps in addressing the issues, both recent and historic, that sparked and perpetuated the post-election violence.

However, in order that the these positive first steps translate into meaningful reform and lasting peace, it is vital that, first, the commissions have unfettered power to investigate; second, that their recommendations form the basis for constitutional, legislative and institutional reform and; third, that their findings, where appropriate, facilitate the prosecution of those responsible for the violence, including individual police officers. In this context, a review of the role of the police during the post-election violence is a vital process of the Commission of Inquiry. The scope of the Commission of Inquiry must include examination of political interference into policing, police culture and welfare and the establishment of an independent police service commission and civilian oversight mechanism. Furthermore, the Commission’s findings must result in meaningful reform of Kenya’s security sector and, where appropriate, prosecution of those officers and leaders responsible for violence.

Kenya has a post-independence history of failed or stalled reforms of both the Constitution and police legislation.9 Without meaningful investigation and reform, the inadequate police response to the post-election violence in 2007-8 will be repeated with each new crisis, undermining any chance for Kenya to achieve long term peace and political security.