Kenya ratified the United Nation Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment in 1997. However, the convention is yet to be domesticated eleven years since Kenya acceded to the convention. Government has a duty to protect it citizens aganist organized crime and safeguard life and property of all Kenyans. However, this has to be done within the premise of law and order and without violating human rights.
Report release by human rights organisations in Kenya point out to torture as still prevalent in police stations; police officers subject criminal suspects to torture in order to extract confessions. In an attempt to address the “systematic” practice of torture, the government has introduced legal provisions that outlawed torture: The Criminal Law Amendment Act, 2003. This Miscellaneous Criminal Amendment Act 2003 seeks to, inter alias, to make inadmissible any confessions made by persons in police custody, unless made before a magistrate-thus making the prospect of torture of an accused person in custody improbable was enforced by the amendment to the Evidence Act, Chapter 80 Law of Kenya by adding the new Section 25A. The amendment states, “a confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in open court. It is imperative to know that both the Kenyan constitution and the Police Act outlaws torture and grantees every citizen the right to be free from torture and other cruel and inhuman treatment.
Section 71 (1) of the Constitution of Kenya provides that no person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence. Police Act, Cap 84, Stion 28 (c): Any persons who by force prevents or attempts to resists lawful arrest of himself or any other person; Sec 28 (i): Use of fire arm upon giving a warning that he intends to use arms and the warning is unheeded. Throughout this report, the term "excessive force" refers to abuse occurring both during apprehension and while in custody.
However, a report released by the Independent Medico Legal Unit alleges that various detachments of the Armed Forces used excessive force exceeding what is objectively reasonable and necessary in the circumstances confronting them in the course of their duties.
The human rights watchdog draws it findings to the infamous military operation in Mt Elgon area aimed at wiping out members of the rag-tagged militias of the Sabot Land Defense Force (SLDF) who has presided over a reign of terror in the disputed Mt. Elgon settlement scheme.
The operation dubbed ‘Operation Okoa Maisha’ was a joint operation bringing togethe units from Kenya Army, Kenya police, Administration police and the General Service Unit.
According to the IMLU, the officers contravenued Article 3 of the U.N. Code of Conduct for Law Enfor ement Officials which provides that: "Law enforcement officials should use force only when strictly necessary and to the extent required for the performance of their duty." UN General Assembly resolution 34/169 passed on December 17, 1979, and in the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which stipulates that, "Whenever the use of
force and firearms is unavoidable, law enforcement officials shall exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved." UN Doc. A/CONF.144/28/Rev.1 (1990).
What has shocked every one is the assertion by IMLU that over 400 people where subjected to toture and other cruel, inhumane and degrading treatment by the military during its operation in Mt. Elgon.
Although l agree with the IMLU report and join in the call for quick and fair investigation in to this allegations with hope that those responsible for perpetuating the alleged violations will face justice, my heart also goes to all those innocent Kenyans who were subjected to the brutality meted by the militias of the SLDF.
Indeed, its the actions of the SLDF which prompted the military operation. The terrorist-style attacks aganist civilians by the SLDF militias called for tactical and decisive approach that would break their cells and end years of terror in Mt. Elgon.
The need for a Military approach aganist members of the SLDF was vital and according to internal security minister the approach was ‘neccessary to the circumstance’
Innocent Kenyans should not be held custody to a a criminal gang that subjects them to extortion, rape, murder, toture and execution. This are the kind of normalicy that have been displayed by the SLDF and the Mungiki.
Human Rights should apply to all and in a country where inequalites and class diffrence rein, human rights remain relative to the advantage of the majority.
What is disturbing to me and to many Kenyans who firmly believe in human rights and justice, its the mere fact that human rights activists always miss the point or get excited by the problem that is confronting them. After reading the IMLU report, l agree with their findings and concure that a culture of impunity still reign s deep within the law enforcement agents in Kenya. However, after seeking answers, l came across the follwing extract which explains why justice and human rights will never be understood.
Yesterday Gladys and I went to Kakamega for a meeting with CAPP (essentially peace committee members) and AVP members from the various yearly meetings. During this meeting a woman from Chwele Yearly Meeting, which is right below the fighting on Mt. Elgon, told us that the previous night a member of one of the Quaker meetings was attacked by the Sabaot Land Defense Force (SLDF) which is responsible for much of the destruction and death on the mountain. His head was cut off and has not yet been found. (Note: Is it more "civilized" to attack people, say in Iraq, with heavy weapons so the body parts are all over the place?) Most of the Sabaot, who live higher up on the slopes of the mountain, have been displaced, so the SLDF is now moving further down the hill to steal cattle and goods killing people in the process. This area is very heavily populated by Quakers; every mile or two is another Quaker school. As the violence increases--and the current political crisis has been a great "cover" for increased attacks and ethnic cleanings in the area.
We should also agree that small arms must be considered as a security problem, but quantifying the public response to the impact of small arms is difficult and studies carried out in areas of conflict are indicative of wide spread human rights abuses. Considers the remote cross border area between Kenya and Uganda where pastoral conflict in the form of cattle raiding with the use of small arms has escalated in recent years, and where security personnel are scarce. Statistics showed that most gunshoot injuries are sustained during raiding, though worrying incidences of injury among noncombatants and young children occure. Many serious injuries and limb fractures are common, causing some long-term implications for pain, growth, disability, and livelihood. Deaths and injuries are likely to be significantly underestimated by statistics obtained from human rights organisations, due to problems of transport, insecurity, deaths prior to arrival, admission fees for some facilities, and fear of reporting injuries due to the criminal element. Police statistics support this conclusion. The situation appeared to have been worse in Mt. Elgon where the direct impact of the SLDF on the civilian population remains undocumented.
