IMLU: ‘Open Letter To The Central Regional Commissioner Regarding His Shoot To Kill Orders’

By Peter Kiama,

NAIROBI, Kenya, Sept 15- Our attention has been drawn to a news item in the Daily Nation dated 14th September 2021 where the Central Regional Commissioner Wilfred Nyagwanga was reported to have given the police a shoot-to-kill order on any suspected cattle rustlers in Central Region.

We stand firmly in defence of the constitutional rights of every person to earn a living, own property, and be safe and secure. In that respect, we identify with the resolve to deal decisively with the rampant cases of livestock theft in his jurisdiction.

We also applaud you and the security team for embracing community policing, and intelligence-based policing in partnership with the communities in the region.

Indeed it is through close collaboration between the National Police Service, National Government Administration, citizens and all other stakeholders that long-lasting safety and security will be guaranteed as provided for in Article 244 e) of the National Police Service Act 2011, among other policy and statutory provisions.

Whereas we condemn the cattle rustling in all its manifestations, our stand and belief are that any efforts in ending it should be within the confines of constitutional and laid down laws governing our country. It is our considered opinion that your orders are illegal and in total disregard of the Constitution of Kenya 2010, and will only contribute to aggravating insecurity.

We wish to unequivocally express our dismay at this order that is not only a license for extrajudicial executions but also militates against the rules of natural justice, where one is assumed innocent until proven guilty through a competent judicial process. In addressing crime and insecurity the law has to be safeguarded and such an order is an outright affront to the provision of Article 26 of the Constitution on the right to life and an unacceptable violation of the National Police Service Act 2011.

We’d wish to bring to your attention the provisions of the Sixth Schedule of the National Police Service Act 2011 that sets out the rules and procedures on the use of force and firearms by police officers.

The law is categorical that force and firearms will only be used where less extreme means are inadequate; ostensibly to protect life and for self-defense. As such, blanket shoot-to-kill orders from anyone must be treated with the contempt they deserve. Any directive contrary to the set legal guidelines must be considered null and void.

We wish to reiterate that any directive on the use of force and/or firearms that are not in tandem with the foregoing legal and Constitutional requirements amounts to an unlawful order.

Consequently, any person found upon investigation to have issued such misleading directives to police officers to shoot suspected criminals on sight and without any lawful foundation may face disciplinary action and/or prosecution for an offence.

We highly value and recognize the critical role played by the National Police Service and National in fostering public safety and security. Shoot-to-kill directives are a thing of the past and should not be replacements to an integrated community-driven security agenda for this country.

It is for this reason that we demand that you retract this directive to allay public fears and reassure residents of your region, and Kenyans in general, of your commitment to safeguarding the Constitution and the rule of law. We at the same time urge police officers and other security agents to ignore your orders and continue serving Kenyans within the ambits of the law.

We appeal to the communities in your region to share intelligence information of the culprits with the NPS and other relevant investigative agencies.

Peter Kiama is the Executive Director of the Independent Medico-Legal Unit (IMLU).