Kenya’s Legal Safeguards vs. Police Brutality: Are Constitutional Rights Truly Protected?
The Constitution of Kenya 2010 being the foundational law, in line with subsequent statutory reforms were designed to safeguard human rights and ensure accountability among law enforcement agencies. It is however sad that despite these legal frameworks in place, police brutality, abductions and extrajudicial killings have become a normality in the Kenyan society.
This article aims to examine the precise legal provisions in particular, specific articles of the Constitution and sections of key statutes that are intended to protect citizens.
Moreover, this article will also provide a review on recent case studies, and offer a clear, step-by-step guide for using the law to bar such abuses.
Constitutional Protections
The Constitution of Kenya, 2010, is the supreme law of the land and explicitly protects individual rights.
- Article 26 guarantees the right to life and human dignity. This provision obliges the state and its agents to respect and protect every person’s life, ensuring that no individual is deprived of life arbitrarily.
- Article 37 protects the right to assemble, demonstrate, picket, and petition the authorities peacefully. This is a crucial measure in order to safeguard the citizens expressing dissent, in particular during protests where excessive use of force by police has been reported.
The above stated provisions of the constitution form the backbone of any legal challenge against state-sanctioned violence.
This affirms that any violation of these rights must be addressed through proper legal channels.
Statutory Framework for Police Conduct
Moreover, Kenya has enacted specific statutes aimed to regulate police operations and hold law enforcement accountable.
- National Police Service Act, 2011;Section 41 of the said act states that police officers may use force and firearms only to the extent necessary and strictly within the confines of the law. This provision serves as a legal check on the discretionary power of the police, aiming to prevent the excessive use of force especially during encounters with citizens.
- Independent Policing Oversight Authority (IPOA) Act, 2011; Section 4 of the said act provides that the IPOA is mandated to receive, investigate, and report on complaints of police misconduct. This section is intended to ensure that allegations of abuse are independently examined and that officers who violate constitutional rights are held accountable.
These sections of the National Police Service Act and the IPOA Act are pivotal in curbing police misconduct. However, despite clear legal mandates, enforcement has been inconsistent, with political interference and corruption often undermining these protections.
Recent Case Studies
Several incidents over the past year illustrate the gap between Kenya’s robust legal framework and on-the-ground realities:
- Mischaracterized Deaths during Protests: In January 2025, Reuters reported that the deaths of protestors such as 19-year-old Charles Owino and 21-year-old Shaquille Obienge were misreported in morgue logbooks as road accidents. Autopsy reports, however, indicated these young individuals were fatally shot during anti-government demonstrations. Such discrepancies obscure the true scale of police brutality and hinder accountability.
- Finance Bill 2024 Protests: In mid-2024, mass protests against the proposed Finance Bill erupted, led predominantly by young Kenyans. Despite the constitutional right to protest under Article 37, the police employed excessive force using tear gas, live ammunition, and water cannons resulting in multiple fatalities and injuries. Reports from rights groups revealed extrajudicial killings and arbitrary arrests, highlighting the failure to implement Section 41 of the National Police Service Act effectively.
- Abductions and Misuse of Force: Human rights organizations, including Amnesty International Kenya, have documented numerous cases where protesters and dissenters were abducted or mistreated by police. These cases raise serious concerns about the enforcement of IPOA Act provisions, particularly Section 4, which is supposed to guarantee independent oversight of police actions.
Using the Law to Bar Abusive Practices:
Know Your Rights
Article 26 of the Constitution guarantees the right to life, while Article 37 ensures the right to peaceful assembly. These are your constitutional shields against arbitrary state action.
Document the Incident
Collect as much evidence as possible. Record videos, take photographs, and gather witness statements immediately after an incident. Accurate documentation can counter discrepancies in official reports, such as misclassified causes of death in morgue logbooks.
File a Formal Complaint
Lodge a detailed complaint with the Independent Policing Oversight Authority, as mandated by Section 4 of the IPOA Act, 2011. Also, report the incident to the Kenya National Commission on Human Rights (KNCHR) to ensure that there is a formal record.
Seek Legal Recourse
Engage a human rights lawyer and consider initiating public interest litigation. Use violations of Article 26 and Article 37, and breaches of Section 41 of the National Police Service Act as the basis for challenging police misconduct in court.
Engage with Civil Society
Partner with local human rights organizations and community groups. Their advocacy and public pressure can help ensure that investigations proceed transparently and that the government is held accountable.
Monitor the Process
Follow up regularly with oversight bodies and the courts. Persistence is key, as delays and inadequate enforcement have been recurring challenges in past cases.
Conclusion
It is unfortunate that despite the strong legal framework in place at this particular moment, enforcement remains problematic. Political interference, inadequate training, and entrenched corruption within the police force often result in a disconnect between law and practice. Strengthening institutions like the IPOA and ensuring that the provisions of Section 41 of the National Police Service Act are rigorously applied are critical steps toward ending impunity.
To conclude, while the Constitution of Kenya, 2010, and statutes like the National Police Service Act and the IPOA Act provide clear protections against police brutality, their effectiveness is undermined by implementation challenges.
Article by; Churchill Mwamachi
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