Kenya's security services have a long history of questionable conduct, and despite a period of apparent reform, it seems old habits die hard. As the country battles to contain COVID-19, the police service is once again centre stage, with rights groups warning that excessive use of force by security services could undermine efforts to contain the pandemic.
While the suspension of some human rights may well be necessary to limit movement, the use of firepower by the police prior to a curfew highlights the default of lethal force. That President Uhuru Kenyatta moved swiftly and unprecedentedly to publicly apologise for the actions of the police must be commended.
Since long before COVID-19 entered the global vocabulary, the role of Kenya's security services in fighting terrorism has come under scrutiny. Al-Shabaab continues to destabilise the country, hence the presence of hundreds of United States (US) security personnel on Kenya's mainland and many more at sea. The recent decision to launch a US-Kenyan task force to ramp up efforts to neutralise al-Shabaab is further evidence of deepening ties.
The Dusit D2 Hotel complex attack last year and Westgate five years earlier remind us that Kenya remains both a victim and active player in the wider global war on terror. How much has this status 'insulated' the country from external pressure to hold its untamed security forces to account?
Following the disputed presidential elections in 2007-8, the Commission of Inquiry into Post-election Violence found that most assaults were perpetrated by security forces. Fast-forward more than a decade and the reflex to shoot first, ask questions later, remains.
Kenya is both a victim and active player in the wider global war on terror
Since 2013 there have been 764 documented cases of extrajudicial killings by security forces, with more than 70% described as 'summary executions' by the Kenyan non-governmental organisation Independent Medico Legal Unit. Much of the violence was conducted in the name of fighting terrorism. Amnesty International and other organisations told ISS Today that there have been just 11 convictions for such crimes in the past four years. Official figures haven't been offered by Kenya's justice department.
Kenya has a right to act in self-defence against violent extremists, but at what cost? The deployment in 2011 of Kenyan security forces in Somalia as part of the African Union Mission in Somalia has made it increasingly vulnerable to 'retaliatory' attacks by al-Shabaab. The introduction of tough new anti-terrorism laws in Kenya in 2012 and 2018 was a response to this.
According to the US Congressional Research Service, the US provides Kenya with over US$8 million in anti-terrorism law enforcement support annually, along with hardware and training. Britain continues to fund training of Kenya's Anti-Terrorism Police Unit which has been implicated in numerous cases of forced disappearances, extrajudicial killings and the shooting dead of several high-profile Islamic clerics over recent years.
Kenya's position as a key partner and security ally of the US and Britain has arguably provided a degree of leverage to withstand international pressure to address security force abuses. Its experience at the International Criminal Court (ICC) - where some of the country's leaders but not the police stood trial - coincided with a time when Kenya experienced an escalation in the threat posed by Islamist militants.
A decade since Kenya's post-election violence, the reflex to shoot first, ask questions later, remains
Despite warnings by ICC chief prosecutor Fatou Bensouda of 'witness intimidation, bribery and the withholding of information' by Kenyan elites with close links to the security forces, the ICC cases collapsed. Yet there was little sanction by international players.
Kenya's military importance almost certainly informed the diplomatic pragmatism that resulted in few consequences for its conduct at the ICC. Security may not have been the only factor that silenced the critics, but Kenya's strategic importance 'was a constant drumbeat in the background' according to the UK's former minister for Africa and Deputy UN Secretary-General Mark Malloch-Brown.
Although there's no suggestion that the Kenyan government actively set out to play the 'terrorism card' to amass political capital, as time went by, this became apparent.
Although Kenya's ICC story is now largely confined to history, the absence of consequences leaves an important legacy - a 'victory' perhaps from which the country's elites continue to draw strength? The foot dragging over security sector reforms in the immediate aftermath of the 2007-8 violence appears to support this.
In 2015 the Kenya National Commission on Human Rights documented '120 cases of egregious human rights violations during counterterrorism operations, including 25 extrajudicial killings and 81 enforced disappearances.' This came as efforts to professionalise the police service got under way with managerial reforms and millions of dollars in aid earmarked for training. But it emerged that the reforms were being sabotaged.
Kenya's military importance likely informed diplomatic pragmatism around its conduct at the ICC
The Nairobi High Court nullified a fresh police recruitment drive after the Independent Policing Oversight Authority found evidence of bribery, nepotism, ethnic bias and all manner of corruption in the process.
More recently a fresh attempt at reform has shown greater promise. Some of the top tiers of police management have been replaced. New standard operating procedures have been introduced to bring the force into line with international best practice.
Non-governmental organisations monitoring police killings such as The Elephant confirmed to ISS Today that until recently, things were 'improving'. Yet the dim news emerging from Kenya as it seeks to police the country's COVID-19 response suggests a brazenness and a sense that the security services remain untouchable.
Kenya cannot afford to fall behind on police reform. It matters because police impunity erodes constitutional obligations to protect human rights. That impunity is also used by Islamist groups to justify their own violence. Research done for the United Nations on the drivers of extremism bears this out.
The terrorism threat for Kenya and its neighbours shouldn't be minimised. The same can be said of the threat posed by COVID-19. Yet there is a danger that the momentum for police reform will falter. The consequences could be tacit endorsement of a 'norm' - that in trying to neutralise global threats by force, justice for abuses against ordinary Kenyans must take second place.
Karen Allen, Senior Research Adviser, Emerging Threats in Africa, ISS Pretoria
A full version of this paper is available at NATO's Defence Strategic Communications, Vol 6, Spring 2019.