By Carolyne Tunnen
“All we need is any form of closure!” these are the words of 22 victims of police brutality that happened in 2020 in Tchundwa village in Lamu County. To them closure comes in various forms; perpetrators taking full responsibility for their actions and apologising, bringing the perpetrators to book, while others believe a form of reparation would compensate for their lost time, business undertakings, and savings that they had to spend to get their mental and physical health back.\
Tchundwa is a Location in Faza Ward, Lamu East Sub County with a population of slightly over 5,000 people. The main livelihood of the residents of this area is mixed farming (both crop and livestock), fishing, and mangrove harvesting and small businesses like retail shops, fish mongering and hawking.
The rains in the area have been marked by late onsets, lower-than-average amounts resulting to major losses for the farmers who have reported poor to no harvest, livestock losses for the pastoralists, not to mention the fisheries sector, which is slowly recovering from the effects of COVID, which halted business. These conditions has resulted to the residents in the area to depend on food aid under the County Government-sponsored food drive aimed at easing the effects of drought.
The village has an administration office led by the Chief and has a police post that was established as a result of insecurity in the area.
On 8th June 2020, the residents of this small village woke up to the sad news of killing of a police Constable by unknown assailants. His body had deep cuts. Subsequently, in October same year, another police officer while on his way to his place of work, Kizingitini police station, was attacked by unknown people. He was disappeared, his gun stolen. His body was found in a forest. It is at that time that all hell broke loose. Security officers attached to Faza Police Station launched a major operation and senselessly tortured locals: men, women and children were not spared. Their intention was finding the killers and the missing firearm.
The officers attacked them in large numbers and in discriminatorily beat them up with gun butts, batons and boots. One of those who was hit severely was a 35-year-old woman who had given birth two weeks earlier through a caesarean section and was breastfeeding her bundle of joy outside her house. The officers landed blows on her sending her to the ground with her child helplessly crying. She lost her consciousness. Her C-section scar was bleeding. She found herself in a hospital bed and all that she mumbled when she gained consciousness was, ‘where is my baby?’ She lost a lot of blood and was treated and discharged two days later where she was reunited with her daughter.
A 27-year-old father of two is yet another victim who remembers that evening with bated breath and thanks God for being alive. He had just arrived from his fish-mongering business and had just settled in the house when he heard commotions outside his house. He left to see what was awry. Three officers were roughing up passers-by. ‘Tell us where you hid the gun,’ the officers demanded as they beat them up. The officers saw him and walked towards him. He was tensed. Without a word, they pounced on him with kicks that again sent him to the ground. He had no idea what the officers were talking about. They were all in the prone positions with their heads on the ground for about 3 hours. ‘I could not walk after they left. I had to crawl back into the house. My body was in so much pain that I thought I was going to die the next minute.’ The injuries he sustained resulted in him being indisposed for seven months. He sought medical attention from local herbalists but this was not effective enough. Accessing the medical facility for specialized treatment in Lamu was a challenge due to the injuries he had sustained. He required a special petrol-powered speed boat which he could not afford. The public boats which are the cheapest mode of transport are normally overcrowded, and this was not a choice. What was left for him was to seek the services from the local hospital that only provided pain killers for his pain. He lost his business and the rich base of customers that he had established. Although his health has improved, he can no longer provide for his family as he did.
A 32-year-old businessman was leaving his shop when two officers pounced on him smacking his face. He landed on the ground. The impact of the whack left a permanent wound in his left ear. He can no longer hear with that ear. He lost time attending to his regular clinics and his savings which greatly supported his medical costs. His business, according to him, will never get back to where it was.
Based on the victims and witness statements, that evening, police used unnecessary excessive force.
The following day, the village was quiet. The residents were confounded. Many of them sought medical attention at the nearest hospital. Some of them could not identify their business premises as the place had been turned down into rubbles. For the young children who had watched as officers took their parents out of their houses, fear was filled in their faces. They could not go to school.
Several of these victims who were arrested were released with no evidence to implicate them of any involvement in neither the death two officers nor the lost gun.
In June 2020, IMLU began the process of documenting these cases. A visit to this village revealed a dire need for counselling, medical and legal support to the victims and families of the grave police brutality, to restore their dignity, enhance their resilience as they solder on in pursuit of justice.
In addition, during the visit, many of these victims had been denied OB numbers despite them reporting their matters to the police station. The Occurrence Book, is the first entry in recording crime/incident in a police station. In addition, for those who had been injured, no P3 form had been issued or filled. A P3 form is filled by a medical officer in order to determine the nature and extent of the bodily injury sustained by a complainant(s) in assault cases. It is produced in court as evidence in cases that involve bodily harm.
The Sixth Schedule of the National Police Service Act 2011 requires police officers to always attempt to use non-violent means first when enforcing law and order. IMLU firmly believes that the police contravened the Sixth Schedule. Part A (1) states that a police officer shall always attempt to use non-violent means first and force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result. Additionally, under part A (2) the force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.
Tchundwa residents were subservient and willing to collaborate with the police. They did not resist arrest. Many of them were caught off guarded and pulled out of their houses. They were also not informed why they were arrested further flouting Article 49 1) (a) (i) of the Constitution that provides that an arrested person has the right to be informed promptly, in language that the person understands, the reason for the arrest.
On provision of medical attention, contrary to Rule 3 of the same Schedule, the police did not provide prompt medical attention where they had applied force on the residents which resulted into injuries. The residents were left on their own only for them to seek medical attention the following day.
The Constitution of Kenya Article 244 (c) obliges that the police to comply with constitutional standards of human rights and fundamental freedoms as enshrined in the Bill of Rights. Indeed as duty bearers, the least citizens expect from the Service is to respect, protect and fulfil these rights and fundamental freedoms. Article 244 (e) further provides that the police shall foster and promote relationships with the broader society. This provision is operationalized in the NPS Act 2011 under sections 41 and 96 which establishes an elaborate framework for citizens’ participation in policing through the establishment of community policing structures. These structures endeavour to promote partnership, communication, joint efforts at problem identification and problem solving between the service and the community. This is to improve service delivery to the community and promote transparency and accountability.
For the residents of Tchundwa to regain trust and confidence in the police, the police station should consider establishing a Community Policing Committee. This is to transform relationships through trust and confidence building and in the long run enhance information/intelligence sharing, a perfect ingredient to effective policing.
As IMLU completes the processing of the 22 case files and subsequently files a constitutional and human rights petition, we are of the opinion that the rights of these residents were violated. They deserve justice. Delayed justice is a double tragedy for these families as they battle with the healing process. And we believe, their call for closure will be attained.