Inspector General of Police Douglas Kanja will be held liable for unlawful use of force by officers to disperse peaceful and unarmed demonstrations, the High Court has ruled.
High Court judge Jairus Ngaah further ruled that the police boss will be held accountable for any acts or omissions of officers under his command and will be personally held liable for any infringement on rights of demonstrators.
In a boost for Kenyans right to picket, Justice Ngaah said in a judgment on December 31 that the police boss will be personally liable for any acts or omissions for issuing unconstitutional orders and directives to officers under his command to “use unlawful force to disperse peaceable and unarmed strikes, assemblies, protests, and pickets”.
“A declaration is hereby made that… the Inspector General of National Police Service, is accountable and personally liable for the acts or omissions of officers under his command infringing on the rights of the individual under articles 36, 37 and 41 of the Constitution,” said the judge.
The court added that the police boss will also be held liable for abdicating effective control of police officers under his command by failing to investigate and discipline officers who violate the constitution by using unlawful force to disperse peaceable and unarmed strikes, assemblies, protests, and pickets.
In a petition filed by several human rights groups last year during doctors’ strike, the court also condemned former Inspector General of Police Japhet Koome to personally pay the costs of the case.
The judge said Mr Koome had no powers to suspend the doctors’ strike in a decision he made on April 14, 2024 as he purported to suspend articles 36, 37 and 41 of the Constitution by cancelling Kenya Medical Practitioners and Dentists Union (KMPDU) members’ right to strike.
The union issued the strike notice early last year over remuneration and contractual term disputes, as well as promotion of consultants.
Dr Davji Atela was violently attacked during the peaceful demonstration at Afya House on February 29, 2024.
The organisations said on April 14, 2024, Mr Koome claimed to suspend articles 36, 37, and 41 of the constitution by cancelling the strike.
Then, Mr Koome directed police commanders to “deal firmly and decisively” with the striking and picketing KMPDU members.
“For the avoidance of doubt, the decision is hereby quashed,” said the judge.
Kenya Human Rights Commission (KHRC), Katiba Institute, International Commission of Jurists (ICJ-Kenya), Transparency International (TI-Kenya), and Africa Center for open Governance (Africog) among others had sued Mr Koome.
The organisations submitted that the decision was disproportionate, intrusively limiting the rights of the KMPDU members to strike, assemble, or picket as provided for in the constitution.
The organisations submitted that article 36(1) of the constitution guarantees everyone the right to freedom of association, including the right to form, join or participate in any association.
They further argued that article 37 of the constitution equally entitles every person peaceably and unarmed, to assemble, demonstrate, picket, and present petitions to public authorities.
The judge said the unprovoked police action of violently breaking up the KMPDU’s members’ peaceful and unarmed demonstration and, in the process, hurting Dr Atelu was an act that contravened articles 36, 37 and 41 of the Constitution.
“It was not act that is within the limitations circumscribed in article 24 and neither could it be justified under any written law,” said the judge.
The judge said it is possible for the police boss and officers under his command to maintain law and order even as the citizens exercise their rights to picket.
