Following the first report of the first case of the COVID- 19, the government came up with a raft of measures in a bid to stem the spread of the pandemic. One of the measures was through the issuance of the Public Order (State Curfew) Order 2020 on the 27th March 2020 which curtailed movement from 7pm to 5 am.
On that very day, hours before the effective time of the curfew, the law enforcement officers meted violence and brutality on members of the public. National and International media documented the various incidents of violence, including the Likoni Ferry incident where young men and women, children and people living with disabilities were beaten, had tear gas thrown at them and crammed into groups which violated their human rights including the health guidelines that were in place to stop the spread of Covid-19.
Since then, there have been several instances of brutal, disproportionate and unnecessary use of force while enforcing the curfew order. Members of the public have been beaten, shot at, teargassed leading to serious injuries and deaths. Moreover, there have been reports of homes and businesses being broken into, looting and extortion.
In the petition filed by the Law Society of Kenya, Petition No. 120 of 2020 Law Society of Kenya v Hillary Mutyambai, the High Court declared the unreasonable use of force in enforcing the Public Order (State Curfew) Order, 2020 as unconstitutional
Following the acts of violence and brutality, Kituo Cha Sheria, Amnesty International Kenya, International Justice Mission and Haki Africa have filed a case on behalf of victims of police brutality.
The Respondents in the case are the Inspector General of Police and the Cabinet Secretary in Charge of Security and the Attorney General who have been sued for failing to uphold their mandate while enforcing the curfew order.
The Petitioners assert that COVID- 19 pandemic and the subsequent restrictions including curfew orders did not suspend constitutional rights including the right to life; human dignity; access to justice; freedom and security of the person, which includes the right not to be subjected to any form of violence from either public or private sources, subjected to torture in any manner, subjected to corporal punishment or treated or punished in a cruel, inhuman or degrading manner; and, freedom from torture and cruel, inhuman or degrading treatment or punishment; and the values of accountability and equal benefit of the law
The Petitioner on behalf of victims hence are seeking compensation from the state following the unlawful use of brutality on the public.
The Petition also calls out the government for the intentional failure by the state to operationalize the National Coroners Service Act, the Prevention of Torture Act and the Victims Protection Act. These enacted Acts have not been operationalized, yet they were meant to remedy human rights violations, unlawful killings, degrading treatment and placate the situation of victims of brutality.
The prayers sought in the Petition include:
- a) A declaration that of the actions by the police and/or treatment of the Petitioners by the police were excessive, un-proportionate, unreasonable, reckless, negligent, cruel and inhuman and in complete disregard of the rights and fundamental freedoms of the Petitioners.
- b) A declaration that the police failed to uphold their mandate and obligations under Article 243 a) c) e) of the Constitution and under Chapter 47 the National Police Service Orders.
- c) A declaration that the Respondents and the state are responsible through the doctrine of ‘Respondent Superior’ for the actions of the law enforcement officers of the various violations of the Petitioners’ rights.
- d) A declaration that the Respondents compromised or violated the rights to life, security of Person of the Petitioners and the legitimate expectation of the Petitioner’s under Article 26 of the Constitution, Article 29 read together with Article 25 (a) of the Constitution of
- Kenya, Article 4, 5 and 6 of the African Charter on Human and People’s Rights and Article 3 of the Universal Declaration of Human Rights.
- e) A declaration that the Petitioner’s right to Human Dignity and the right to have that dignity protected and respected was as enshrined under Article 28 of the Constitution of Kenya were violated by the state through its agents and/or servants.
- f) A declaration that the failure by the state to fully operationalize implement the Victims Protection Act, the National Coroners Service Act and Prevention of Torture Act, 2017 has violated the fundamental rights and legitimate expectation of the Petitioners and the Kenyan citizens.
- g) An order of mandamus directed to the Attorney General to advise the President to designate/ appoint a Cabinet Secretary in charge of justice or to assign the responsibility of a Cabinet Secretary in charge of Justice under an Act to him in order to ensure operationalization/ implementation of the Victims Protection Act, the National Coroners Service Act and Prevention of Torture Act, 2017.
- h) A declaration that as a result of the breach of rights the petitioners suffered damages, pain and suffering.
- i) An order for compensation as enshrined and provided for under Article 23(e) of the Constitution made up of special damages for the expenses incurred and the damages for loss of lives, General damages and exemplary damages.
Dr. Annette Mbogoh -Executive Director| Kituo cha Sheria
Hussein Khalid- Executive Director |HAKI Africa…
Benson Shamala-Country Director | International Justice Mission-Kenya
Irũngũ Houghton-Executive Director | Amnesty International Kenya