Former police chief Koome to face music for police brutality

Former Inspector General of Police Japheth Koome could be dragged into a landmark criminal trial for the actions of officers under his command who violently disrupted a peaceful protest by doctors last April.

Members of the Kenya Doctors and Dentists Union were demonstrating at the time over delayed posting of medical trainees and payment of fees for postgraduate students.

KMPDU General Secretary Davji Atela sustained serious injuries while leading the strike. He was hit by a tear gas canister, suffering deep cuts on his forehead.

The High Court ruled for such acts Koome could be held criminally liable for while referring to Atela’s injuries.

“The respondent could and is properly subject to criminal prosecution for the acts or omissions of the officers under his command if those acts fit the description of the offenses as defined in the Act,” Justice Jairus Ngaah said.

Koome issued a directive to the police to deal with the striking doctors “firmly and decisively in accordance with the law”.

He contested the protests, saying they had become a public nuisance and posed a threat to public safety and security.

The case was brought to court by the Institute for Social Responsibility and seven other human rights organizations.

They argued in court that Koome’s decision was made “defying logic” and that no reasonable and informed IG would claim to abrogate constitutional rights “on a whim.”

They argued that the decision to cancel the strike violated Article 24 of the constitution, which requires that there be a rational connection between the limitation of a constitutional right and the purpose of the limitation.

The defendants, including Koome, never filed any answer or affidavit to counter the claims made by the plaintiffs in the case.

The judge said that “although on the face of it the police statement appeared to have been an innocent communication, it was accompanied by veiled threats against other demonstrations by KMPDU members in the exercise of their right to picket”.

“I interpret respondents’ statement that ‘all respective police commanders have been trained to deal with such situations firmly and decisively in accordance with the law’ as merely a threat to disrupt union demonstrations and submit to their judgment.” “said the judge.

He said if Koome and his team had any information that “non-doctors” were planning to join the strike to cause havoc and terror, it was his duty to arrest such elements and defeat any attempt to cause the alleged terror without necessarily interfering with doctors’ right to picket.

“And as much as he knew that Koome was aware of infiltrating the demonstration by KMPDU members with characters who were going to cause mayhem, he had a constitutional obligation to ensure national security.” This should have been done in accordance with the law and with respect for human rights and fundamental freedoms.

He pointed out that it is possible for Koome and the police under his command to maintain law and order even as citizens exercise their rights under Article 36 of the constitution.

Justice Ngaah allowed all the prayers sought by the plaintiffs, expecting special remedies for the court to oversee certain actions to be taken by the Inspector General of Police.

The court also said that it could not grant the prayer for damages sought as compensation to Atela for the injuries sustained, as it could not assess the damages payable in the absence of any proof of the extent of the injuries sustained.

However, it said Koome was responsible and personally liable for the acts or omissions of officers under his command while he issued “unconstitutional orders to his officers to use illegal force to disperse peaceful and unarmed strikers last year”.

At the same time, Ngaah blocked the inspector general from implementing the April 14 decision to suspend Article 37 of the constitution, which protects citizens’ rights to peacefully assemble, demonstrate and picket.

Ultimately, the judge overturned the April 14 decision, which purported to suspend the article of the constitution by nullifying the union’s right to strike peacefully and unarmed.

“It is clear from Koome’s conduct that he did not properly understand the constitutional provisions governing the functions of his office and his decision-making power. And as for the rights of union members, he never gave effect to those provisions,” the judge said.

In closing, Ngaah said the decision deprived the union members of their rights but they were never given any opportunity to be heard before the decision was made.

“I am satisfied that Koome’s decision lacked procedural fairness towards KMPDU members.”

Nora Mbagatji, executive director of the Katiba Institute, one of the petitioners, welcomed the decision.

“Today’s ruling establishing personal liability for serious constitutional violations is an important reminder of the avenues of accountability and protections afforded to us by our constitution. Everyone should be aware that the excuse of following orders or relying on the perceived protection of a job title will not hold up in a court of law or court of public opinion.”

Katiba’s litigation counsel also welcomed the court’s decision, describing as fair Ngaah’s conclusion that the Inspector General of Police can be held personally responsible for the actions of the police under his command.

Holding that the former IG was personally responsible for the actions of the police who violently intervened in the exercise of the right to protest, the court reminded the state that it does not grant human rights and any exercise of power by public officials must be accounted for. The court has finally rooted accountability in the exercise of police powers,” said Joshua Nyawa.

Kenyans on the X platform also welcomed the decision, with many posting that no one is above the law and that police officers should be held accountable for their actions.