A spate of enforced disappearances and extrajudicial killings in Kenya has been the subject of public debate and scrutiny in recent times. These abuses have been committed by state security agents and seemingly unaccountable officers in the wider context of crackdowns on criminal gangs and counter-terror operations. Most recently, a viral video, showing two youths being gunned down at point-blank range by alleged police officers, was widely circulated. Several human rights outfits have called for a judicial inquiry to be set up to look into those criminally responsible for these unlawful executions. The government has, on its part, refuted the existence of execution squads. The Nairobi Police Commander has been quoted as saying that the force will deal ruthlessly with any gangsters.
In the wake of these events, public opinion has been visibly divided concerning the heavy-handedness by security forces in an attempt to maintain law and order. A section of the population believes that the use of excessive and lethal force is warranted and that criminals do not deserve due process because they have victimized so many people. They are pitted against those who believe that extrajudicial killing infringes on fundamental due process tenets and denies people the constitutional right to be presumed innocent until proven guilty. In this public discourse, it has become evident that a large number of people take fault with the distinctive use of the idiom of human rights to express dissatisfaction with extrajudicial killing. According to this line of thought, the language of human rights need not lend itself to this argument because it has been conspicuously absent in the cases where innocent people have been targeted by criminals. Subsequently, human rights have come to be regarded almost pejoratively.
Extrajudicial methods have been employed by security forces who are hard pressed to combat crime under the pretext that courts or fellow officers are slow and at times corrupt. Such killings and summary executions are, in my opinion, a dysfunctional response to a dysfunctional system. Instead of restoring accountability, they further unravel it. I fully empathize with people who have fallen victim to criminal gangs and the discrepancies in procedural justice outcomes that they have had to put up with thereafter. It is understandable that throwing a constitutional provision on their circumstances does not suddenly make their pain any easier to deal with. In fact, I might go ahead and add that constitutional democracy is empty in the face of broken systems. If indeed the law was made for man, and not man for the law, what would be wrong with making arbitrary methods either official policy or practice if a vast majority of the population agrees? The answer to that question is straightforward if this issue is thought about instead of reacted to. That is not justice, is it retribution through state sanctioned homicide and a normalization of criminality in the guise of law and order.
While indeed there are real threats from criminal gangs and terrorist cells, compromising the rule of law hardly leads to peace and development. There is a fundamental flaw in the logic that allowing state security officers to bypass the legal system and achieve more power will eventually result in more security. If we have been unable to trust a number of them with accountability to execute their current mandate, what then makes us think that they will adhere to the confines of just gunning down criminals? If we give an inch, they might as well take a mile. They will respond to threats be they actual, perceived, trumped up or potential. The social costs of arbitrary methods should not be underestimated. If the constitution, the highest law in the land, is no longer applicable, that means the rest of the laws are equally, if not more so, up for grabs. Likewise, if some rights (read the right to life) are less than absolute, so are others as well. These killings will take place amidst a wider range of abuses. In essence, we will have traded in the law for an illusion of order.
Opining on extrajudicial killings has become a bit of an emotive affair. I feel that the general discourse would be more productive if we started from the point that human rights are inalienable. The government guarantees rights, it does not give them, and it should not be able to take them away. The same human rights provide every citizen with fundamental protections against the power of the state. That is not all. Attainment of human rights also means that essential services such as education, healthcare, housing, food, shelter, and other basic needs which people need to get out of poverty are provided. The results might not be immediate, but championing for human rights is for the long term benefit of public order. At the heart of it all, is the aim to create productive members of society who live a life of dignity and are less prone to anti-social values. Gunning down negative elements, on the other hand, does not address root causes, it temporarily gets rid of the problem until another one arises to take its place; then the cycle continues.
In thinking about this issue, an analogy often comes to mind: “Give me your freedom and your rights and I will give you food, and I will not give you back your freedom once you have your food. If you choose freedom, then be hungry.” I foresee that as precisely the cost of allowing for moral relativism in government policy and standards. We will get ‘food’ but we will have to give up certain freedoms to maintain it all. With arbitrary means, it is a slippery slope onwards and we leave room for anyone to project their malice onto such policies and, more to that, have an excuse for it. We do not have to make that kind of concession to remedy a broken justice or security system. For democracy to function, public figures in public institutions need to be held to account. Let us demand more, not less.
Our communities deserve to exist in a context where everyone receives the same benefit from the legal system. That can eventually be achieved through the promotion of human rights and rule of law. The result of such a society would be less dysfunctional behavior and predisposition to crime. The civil justice system has indeed failed most people, trust has broken down and there is need to rebuild, but vigilante justice and extrajudicial killing have yet to result in long term peace and prosperity.
Ndunge Wayua is a self-professed African feminist, Pan-Africanist, and wildlife activist. As a human rights professional, she has had a vibrant career as part of the United Nations Office of the High Commissioner for Human Rights (Addis Ababa), The African Union (Burundi), and The Palestinian Centre for Human Rights (Gaza strip). She regularly writes thought pieces on nonviolent conflict resolution, women’s rights, and African development. She invites passionate reformers to engage her, challenge her, and converse with her at firstname.lastname@example.org.
Written by Ndunge Wayua and published on 10-July-2017