Press Statement by The Independent Policing Oversight Authority (IPOA) Regarding Alleged“Shoot- to -Kill” Orders Issued to Police Officers When Carrying Out Security Operations
Background
The attention of the Independent Policing Oversight Authority (IPOA) has been drawn to media reports in respect to the alleged green light given to the Police to gun down suspects in light of the apparent recent proliferation of criminal activities in various parts of the Country.
It is indeed not in doubt that the Country has of late experienced an increased wave of crime, including various acts of terrorism, whose combined effects have been the terrible loss of many innocent lives. Arising from the loss of life and limb, the resulting public frustration with the manner in which the Security Forces have gone about addressing the security challenges is indeed understandable.
However, while our hearts go out to the victims and the relatives of those affected by these heinous acts, the Independent Policing Oversight Authority is of the firm view that the only way to deal with the suspected perpetrators of such crimes is not to extra-judicially eliminate them but to apprehend them and bring them to justice.
When the Constitution of Kenya, 201 0, was promulgated, it sought, among other reforms to promote the establishment of a Police Service that would break with the unaccountable, often abusive policing of the past era. To enable the Police Service to break from its past reputation of ruthlessness in its dealing with the citizenry where it employed both torture and gratuitous violence in the course of its work, the Constitution now requires the National Police Service to not only strive for professionalism and discipline but above all, to also uphold Constitutional standards of human rights and fundamental freedoms and dignity of the citizenry.
In order to safeguard the interests of the public as envisaged in the new Constitutional dispensation, the Independent Policing Oversight Authority was established to provide civilian oversight over the Police and to ensure that members of the Service are accountable for their actions. In this regard, the Authority is mandated to among other things, monitor and investigate policing operations affecting members of the public and more importantly, to investigate any death or serious injury which result from Police action. The Authority believes in the Rule of Law and the National Values and Principles of Governance enunciated in Article 10 of the Constitution.
Accordingly and in light of the emerging reports of misleading directions being given to the Police to “shoot-to-kill” suspects, the Authority would like to take this early opportunity to clarify the circumstances under which members of the National Police Service may use force and/or firearms when carrying out their operations. It is IPOA’s position that the principle duty of the National Police Service is to fiercely guard the right to life accorded to every Kenyan by Article 26( 1) and (3) of the Constitution.
A) Force and firearms must be used only in accordance with the law
Pursuant to section 61 (2) of the National Police Service Act, 2011 (hereinafter the NPS Act), Police officers are required to use force and firearms only in accordance with the rules on use of force and firearms set out in the Sixth Schedule to the Act. Guidance on how police officer must use force and firearms is thus provided in the law, and consequently, all directives to police officers on the use of force and firearms must be in conformity with the provisions of the Sixth Schedule to the NPS Act.
B) Police officers must always refrain from the Use of Force in the First Instance
Section 1 Part A of the Sixth Schedule to the NPS Act requires Police officers to always refrain from the use of force when apprehending culprits. Force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result. Moreover, the force used must be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Service Standing Orders.
C) Use of firearms
Specifically regarding the use of fire arms, Section 1, Part B of the Sixth Schedule to the NPS Act provides“Firearms may only be used when less extreme means are inadequate and for the following purposes –
(a) Saving or protecting the life of the officer or other person; and
(b) In self-defense or in defense of other person against imminent threat of life or serious injury.”
Save for this provision, there is no other instances in which the use of firearms is allowed under the law. Any use of firearms outside the ambit of the instances provided above thus amount to unlawful use of force. Police officers unlawfully using force are therefore reminded that they may face disciplinary action and/or prosecution where the unlawful use amounts to a criminal offence.
Additionally, pursuant to Section 2, Part B of the Sixth Schedule to the NPS Act, an officer intending to use firearms is required to identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed, except-
(a) Where doing so would place the officer or other person at risk of death or serious harm; or
(b) If it would be clearly inappropriate or pointless in the circumstances.
D) Reporting to the Authority
In addition to the foregoing, pursuant to Section 5 Part B of the Sixth Schedule as read with Section 2 Part C of the Sixth schedule of the NPS Act, where use of fire arms leads to death, serious injury and other grave consequences, the Officer-in-Charge or another direct superior of the person who caused the death or injury, is required to report to the
Independent Police Oversight Authority as soon as possible and in any event within 24 hours of the incident for purposes of investigation by the Authority.
Police Officers are hereby reminded that upon an investigation as provided, the Authority may recommend prosecution where such unlawful use of force amounts to a criminal offence. Similarly, where the Authority’s investigations disclose negligence in the performance of duty by the superior or other members of the Service, IPOA shall recommend that disciplinary action be taken against such members.
E) Unlawful orders
The Authority wishes to reiterate that any directive on the use of force and/or firearms which is not in tandem with the foregoing legal and Constitutional requirements amounts to an unlawful order. Consequently, any person found upon investigation to have issued such misleading directives to police officers to shoot suspected criminals on sight and without any lawful foundation may face disciplinary action and/or prosecution for an offence.
(i) Police officers not required to comply with unlawful orders
Pursuant to Section 51 (2} of the NPS Act, Police officers who fail to comply with unlawful orders cannot be subjected to disciplinary proceedings. Consequently there is no requirement for police officers to comply with orders regarding use of force and firearms which order is not in tandem with the foregoing provisions of the NPS Act.
(ii) Following unlawful orders is no excuse for unlawful use of force
Again as per the provisions of Section 11 Part A of the Sixth Schedule to the NPS Act, individual Police Officers are hereby reminded that following orders of a superior is no excuse for unlawful use of force. Consequently police officers who follow directives on use of force not in line with the foregoing provisions may face disciplinary action or be prosecuted for unlawful use of force where it amounts to a criminal offence despite the fact that they were acting pursuant to a purported superior order.
F) Responsibility of superior police officers on unlawful orders
Pursuant to Section 1 Part C of the Sixth Schedule of the NPS Act, Superior officers are required to do everything in their power to prevent unlawful use of force or firearms, and when such unlawful use of fire arms does occur, they should report this immediately to the Independent Policing Oversight Authority and to the Inspector-General of the National Police Service.
Consequently all superior police officers are not only under an obligation not to issue unlawful directives on use of force and firearms but are also required to direct their juniors not to comply with unlawful directives and to put in place measures to ensure their juniors comply with the law on use of force and firearms.
Secondly, pursuant to Section 2 Part C of the NPS Act superior officers are prohibited from giving an order that would lead to the unlawful use of force as the same would amount to a disciplinary and/or criminal offence. Consequently all superior officers giving orders and directives on use of force and firearms not in tandem with the foregoing legal provisions may face disciplinary action or be prosecuted where the unlawful use of force amounts to a crime.
Conclusion
The Authority reiterates that, as per its mandate, it shall continue to monitor and investigate policing operations affecting members of the public. Where the Authority’s investigations reveal there has been unlawful use of force and/or firearms, it will not hesitate to recommend prosecution and /or disciplinary action against such police officers and their superiors issuing unlawful directives. Members of the Service are therefore reminded to ignore such misleading directions and to remember that they shall be held individually responsible for any violations of the law.
IPOA shall continue to work with the National Police Service and other relevant stakeholders to ensure compliance with the law and the observance of human dignity, human rights and more specifically, the right to life.
Macharia Njeru
Chairman, Independent Policing Oversight Authority