On Wednesday February 10th 2016, Justice Martin Muya of the High Court in Mombasa found guilty two former police officers, Veronica Gitahi (former DCIO Kinango) and Constable Issa Mzee, with manslaughter of 14 year old primary school girl Kwekwe Mwandaza. Kwekwe was fatally shot by the said officers in Kinango on 22nd August 2014. The two claimed that the girl had attacked them as they were discharging their duties and that they (the police officers) shot her after she attacked them with a machete. Justice Muya in rendering his verdict noted, amongst other things, that the “two were negligent in using the firearm against a child.”
Following the questionable and bizarre initial investigations conducted by the police in this case, and amid outcry from the general public and human rights organisations, the Independent Medico Legal Unit (IMLU) took up the matter. IMLU filed an application under a certificate of urgency at Mombasa High Court (Mombasa High Miscellaneous Criminal Application No. 77 of 2014), seeking orders for exhumation of the body of the deceased for purposes of conducting an independent post mortem examination.
The earlier post-mortem examination had been conducted unprofessionally; against forensic medical documentation protocol; and only served to defeat the pursuit of justice for the victim and family. On 9th September 2014, the High Court granted the orders and the exhumation and post-mortem was conducted on 12th September 2014 by the government pathologist assisted by pathologists drawn from IMLU network of doctors working
Additionally, IMLU in a precedent-setting decision secured an order from the high court to enable the family actively participate in the criminal proceedings as provided for under the Victims Protection Act 2014. This enabled one of the IMLU network lawyers to fully represent the family throughout the proceedings, including providing a victim impact assessment report prior to sentencing.
Kwekwe’s execution by police officers is a clear example where the police officers did not act in the best interests of the child as required by law; a case where a nation failed to safeguard the life of one of their most vulnerable; a child.
While this criminal act attracts a maximum penalty of life in prison, we welcome the conviction of manslaughter, and the 7 years sentence against the two officers, and commend the Director of Public Prosecutions, the Independent Policing Oversight Authority, and the court for speedy investigations and dispensation of justice respectively, and hope that it will serve as a closure for the family and friends of Kwekwe.
We are also grateful to other human rights organisations including MUHURI, Kenya National Commission on Human Rights, our network of professionals – Doctors, Lawyers, Psychologists, human rights monitors and Journalists, and indeed all Kenyans of goodwill who supported the process that led to this conviction.
As you are aware, IMLU has made accountability of police officers a key national priority in the police reform process; the reason why we have been at the forefront in the fight against extra-judicial killings and misuse of firearms in Kenya. We are however alarmed that despite this effort, there still remains numerous other cases of citizens being killed by police in questionable circumstances, a clear onslaught on the basic fundamental rights enshrined in the constitution. Unfortunately not many officers are being held accountable for these heinous acts during the police vetting process.
Between January and December 2015, we recorded a total 126 cases of deaths from use of lethal force, 77% of these indicative of summary executions by police officers and the Kenya Wildlife Service Rangers. It is our sincere hope that this case compels the National Police Service and other agencies to respect the right to life as prescribed under Article 26 of the constitution, and the assumption of innocence until proven guilty by an impartial judicial process, and immediately act to stop summary executions by its officers.
The successful prosecution, conviction and sentencing of the two officers in a record 17 months is a clear indication of:
- The value and need for strengthened civilian oversight mechanism over the police. While IPOA has proven that this mechanism works for faster administration of justice, they need to fast track to their presence at the grassroots;
- The need to speedily enact the National Coroners Bill 2015 to provide for independent forensic investigations of questionable deaths While IMLU has and continues to play its role as an experienced forensic organisation, the government needs to scale up this work by providing the necessary legislative framework and allocation of adequate resources to relevant agencies.