By Susan Kendi and Sarah Nyakio
Who are these people that are paid salaries to kill other people on a daily basis? What runs in their minds? What is their social upbringing? Are they proud when they go back to their homes in the evening and meet their children? Are they proud to say, ‘I was from work; today I had a very good day?’ Can they proudly proclaim the killings they have been associated with?
These are some of the questions that Samwel Mohochi, who is the executive director of the Kenyan section of the International Commission of Jurists (ICJ-Kenya) and an indefatigable campaigner against police executions, grapples with.
Ahead of the court mention of the case challenging police shooting during the 2007 post-election violence, Journalists for Justice releases an exclusive interview conducted with the star witness called before Justice Fred Ochieng in March this year.
Extrajudicial killings are not a new phenomenon in Kenya. According to the 2016/2017 Amnesty International report, Kenya was ranked top in Africa in cases of enforced disappearances, extrajudicial executions and torture with a total of122 cases by October 2016. Some abuses were committed by security agencies in the context of counter-terror operations, others by unaccountable police officers and other security agencies.
Here are excerpts from the interview:
JFJ: So, tell us about yourself.
Mohochi: I prefer to simply describe myself as an advocate of the High Court of Kenya, a practitioner of human rights law and a human rights defender.
JFJ: You were an expert witness during the police shootings hearing in Kisumu in March. What is the background to the report you were presenting to the court?
SM: The the post-election conflict in Kenya started on December 27, 2007 after the announcement of the presidential election results. At that time, we started witnessing a rise in the body count. There were many people being reported dead. I was working for an institution that was purposely documenting and engaging in advocacy around the question of torture and related violations; such as extrajudicial killings and summary executions that occur outside the law.
As an institution we were not prepared for this crisis and we had to move fast to see what contribution we could make. It was in that context that we decided to document some of these cases. So the evidence I was giving (in court) was squarely around the work that that institution undertook at that time.
JFJ: At the time, you were the executive director of the Independent Medico Legal Unit (IMLU). What happened when you moved from IMLU? Were there any developments in terms of the report that you had previously written and produced?
SM: Actually there were two reports. I think the background is important here because as early as April 3, [2007] I had been in touch with the Ministry of Health. We did not have funding to undertake this work but we in principle had a conversation with a donor who gave us her word. So we were operating on the goodwill of somebody and we did not have a signed contract. I had to get my board to allow me to expend resources, and use internal borrowings. So we deployed the first team of four pathologists. We tried to look at the flashpoints, the areas where the conflict was most profound and we tried also to factor in the risks that come, because at that particular moment, it was not possible to move around. Now the Ministry of Health had also played a remarkable role because they voluntarily issued a circular to all healthcare facilities in Kenya giving us a blank cheque to participate in all postmoterms in the country.
The factors influencing our work included: informed consent obtained only from family members of the deceased person. We had a huge number of people that had been displaced from their homes. So we had people moving into camps for the internally displaced and it was not easy at that juncture to get family members, but we nonetheless deployed our pathologists. Some of the flashpoints where we had pathologists were Nairobi, Naivasha, Nakuru, Eldoret covering Mumias, Kakamega and I think Webuye and Kitale.
Then there was a pathologist in Kisumu covering Kisumu, Siaya, Kisii and Migori. But the postmoterms had to be undertaken with familial consent, so for the limited number of postmoterms that were undertaken, we had all the necessary prerequisites to do our work. In that context then we ended up deploying pathologists who were comfortable to work in those areas because of movement constraints.
JFJ: You testified before the Commission of Inquiry into the Post Election Violence, chaired by Judge Philip Waki, and you presented your report to them. Do you think there were any changes in the police force after that?
SM: Yes. If you were to look at [the Waki] report keenly, you will discover out of 70 or 80 postmoterms done, two postmoterms actually did relate to serving police officers who were killed in the line of duty. That already demonstrates that this was not an exercise that was undertaken in casting the police in bad ligt and that these two postmoterms had the blessings of the families of those police officers who died in the line of duty.
We had preliminary findings. We did a preliminary report that sought to demonstrate the trends: the initial findings on the causes of death, the manner of death and also considering the legal framework. Now having submitted our evidence to the Waki Commission, certain recommendations emerged from there. For example: the recommendations around police reforms, the recommendations for creation of an Independent Police Oversight Authority (IPOA); the recommendations of the merger [of the regular police and the Administration Police], the collapse of the chain of command for example within the police service; the inability of the police force to protect the civilian population at the hour of need, those were issues that were extensively considered by the Waki Commission and subsequently those recommendations led to the creation of the Police Reforms Task Force [chaired by Justice Philip Ransley].
The Ransley team was to purely looking at reforming the police and making appropriate recommendations. I think reform within the police service has greatly been influenced by those two commissions, the Waki commission and the Ransley task force.
JFJ: Were there any consequences of working on the report and was there any kind of action you took after filing the IMLU report?
SM: I am aware there are a number of cases that were filed. I cannot speak for IMLU [since] I don’t know if they did file other cases pursuant to that report because I left the institution almost immediately. So I would not be very certain about the cases filed but what I would point out, is that following the findings of that report, a few processes were actually implemented that resonate with the evidence that was presented in the Waki report. We should also recall that according to the National Police Service Commission and the National Police itself, very few perpetrators were brought to justice. That is a stain that remains on the National Police Service.
Part of the evidence provided to the Waki commission touched on the provisions of section 385 and 386 of the criminal procedure code and this is the procedure where custodial or unnatural deaths occur. So if someone was to die in police custody -- and custody here does not necessarily mean in police cells -- those two sections provide for the procedure to be followed. What was most profound in the IMLU report was that close to 90 per cent of the cases that formed the basis of that report did not comply with that procedure. That means the police did not document those cases as expected. There is a P22 form that is used to document such deaths. Those forms were missing. There was no inquiry file number created. During the postmoterms, the police officers, and it is a requirement of the law, were not present. So that already points to the fact that maybe during that time the National Police Service was in a state of paralysis. It could not undertake its mandate as expected by the law. That again leads us to the question of accountability for the perpetrators and what happens to the multiple criminal cases that emanated from that conflict. Cases that might even extend beyond death. So this is a report that was only focusing on people who had died.
We had cases of arson, we had cases of theft, and we had cases of assault. All these cases numbering in excess of 5,500 were never effectively investigated and that remains a stain on the police service.
JFJ: Any consequences?
SM: Ideally, the consequences would have emanated from prompt, thorough and impartial investigations. In the absence of that, then you will find that the victims are without justice.
JFJ: A six-year detailed report issued in 2018 revealed that out of the 9,000 cases lodged with IPOA, only four had resulted in convictions. Do you think that IPOA has performed its mandate since its establishment in 2011?
SM: I think the greatest indicator is that there still exists a problem within the national police service in the number of complaints against officers lodged among various agencies. These are Kenyans craving justice and they are lodging these complaints. The greatest indicator out of all this is that there is a problem within the NPS.
So as at the end of last year I think we had close to 9,600 or thereabout, close to 10,000 cases or complaints that had been lodged, and the number of resolutions is nothing to write about. So to that extent, I would sadly observe that the Independent Police Oversight authority (IPOA) has performed dismaly. If I was to give them a percentage, I will give them less than 5 per cent because of the sheer number of complaints that remain pending without feedback to the complainants, years after they were made.
JFJ: Since we now have a new inspector general of police who has promised to accomplish a lot within a period of 100 days, do you think there maybe be any reforms or changes?
SM: I am afraid I don’t think so. The police reform process has three broad elements. There were human rights concerns in the manner in which police go about undertaking their work, in relation to the police interaction with the public. That was the first pillar. The second pillar was on institutional strengthening of the police: Enhancing its capacity, streamlining operations, provision of enabling tools for the police to do their work. These would include motor vehicles, computers, and an array from a shopping list. The three elements are: the interaction by the police with the public, the internal restructuring of the institution and capacity building. Now, over the years, the police reform process has been more inclined towards infrastructural development, capacity building and what in my estimation is the greatest failing within the National Police Service. I think in the absence of changing mentality, it becomes a very tall order for that institution to be able to protect and promote human rights while discharging its work. So I do not think the inspector general will achieve much, specifically on the role of the police and the citizenry. I think it is at its lowest, the citizens do not trust the police. The police have been associated with criminal acts and gross human rights violations post-2010 [after the new constitution] and the most profound show by the police is the just concluded General Election of 2017. So I do not see the inspector general achieving much. I would wish he works more on changing the mentality of the entire police service to become an institution that focuses on the citizens as their clientele, as a starting point.
JFJ: What is your perspective on extra judicial killings, do you think it is a lost battle or is there hope?
SM: The sheer number of young people who have suffered as victims to summary execution in Kenya has escalated. It is much more profound than it was 2007. Now that in itself indicates that there might be a systemic approach by the National Police Service in targeting a particular constituency within the citizenry. As to whether it is a lost hope, I would say that it is not. I would say that there have been a few remarkable cases where individual police officers have been held to account. That indicates that there is a system in place that can afford families of victims justice. As to whether that system is moving as fast as the families would expect, I would say no but that does not mean that there is no light at the end of the tunnel. The solution lies in punishment, the solution lies in reparations. What is lacking most for these families is being able to access these forums and to pursue their cases to their logical conclusion.
That is a gap that exists and a few organizations would sporadically file one case or two. So the approach has been erratic; it has not been consistent and the reliance on non-governmental organizations as the only source of support and assistance to families of victims is also a strain on the quest for justice in these communities.
JFJ: What are your thoughts on extra judicial killings?
SM: It's mind-boggling. I think it's something that requires some deeper reflection and research. As a nation, we need to understand who are these people that are paid salaries to go about killing other people on a daily basis. What runs in their minds? Who are they? What is their social upbringing? Are they normal human beings? Are they proud when they go back to their homes in the evening and meet their children? Are they proud to say, ‘I was from work, today I had a very good day?’ Can they proudly proclaim the killings they have been associated with, if they maintain that they are doing it under the law or within the confines of the law? I tend to think the answer is No. So we have a problem of having people who are killers. Kenyan taxpayers’ money is being utilized to pay killer groups to go about killing people without subjecting them to the due process of law.
