Masengeli-judiciary standoff points to growing impunity

The month-long standoff between Deputy Inspector General of Police Gilbert Masengeli and the court of law finally rested on Friday but still raised very fundamental questions on how far the country has gone to end impunity and disregard for the rule of law by senior officers in the executive.

Never before since the 2010 constitution was enacted had a senior police officer, in this case, an acting inspector general of police, been summoned by a judge not once but seven times without making an appearance.  

The court was demanding an explanation from the police boss on the disappearance of three people thought to have been abducted in Kitengela by police in broad daylight a month ago.

Human rights defenders read defiance in Masengeli’s alleged reluctance to honour summons and also argued that it was an act of impunity for human rights abuse and violation of the law.

Makueni Senator Dan Maanzo called for harsh punishment against police officers whose abuse of power, appears to have been emboldened by lack of punishment from the Police Oversight Authority (IPOA) and the judicial system.

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Lawyers argued that impunity was growing in the police because very little has been done in terms of disciplinary measures or criminal prosecution of junior officers accused of serious human rights violations and their seniors whose respect for the rule of law is also now questionable.

All reports produced by Amnesty International (Kenya) since 2013 to 2023 on human rights abuse, have shown many acts of cover up and political manipulation in protection of perpetrators and police impunity by the executive.

“This is a country where the weak have no protector, while the perpetrators cover each other. The police get away with anything, even murder,” said a witness interviewed by Amnesty.

The latest report cautions that the country could be sleepwalking into a possible disaster and a relapse into the days of detention without trial witnessed during the dark one party era.

Police reforms have continued for a long time and Kenyans would expect that by now, the country could have gotten it right but it appears things are getting worse after recent killings, abductions and wanton violation of human rights by police.

Laws passed in 2011 contained an ambitious framework for police reforms, which if fully implemented would have overhauled the structure of the police force to address shortcomings that continue perpetuating impunity and police abuses against human rights.

It also appears that the establishment of IPOA for the first time in November 2011 that set new standards of conduct for the police has not helped much 13 years after its creation.

Although Deputy Inspector General Masengeli made a spirited effort to explain his remorsefulness for not appearing in court, the damage created by his long running dispute with the courts will remain in the minds of law abiding Kenyans for a long time.

They just cannot fathom how the very person who is supposed to oversee that law and order being is enforced in the courts of law to ensure business is run efficiently and in an orderly manner could not have been bothered by the uproar his actions caused for a whole month, his explanation notwithstanding.

Before Masengeli dramatically turned up in court on Friday with a barrage of beaming lawyers allied to the Kenya Kwanza administration, in parliament, Deputy Leader of Minority in the National Assembly Robert Mbui had demanded to know why the senior officer refused to answer to court summons.

“He has ignored them not once not twice but on several occasions. He is unapologetic. It appears he thinks holding that office gives him power and authority over the courts. He does not understand the separation of powers that we have in a democratic nation like Kenya,” said Mbui.

Ken Osido, the Executive Director, Governance Watch, also regrets that Kenyans hoped to move from a police force, to a police service as was envisaged in the 2010 constitution but nothing much changed over the years.

Several audit police reports have shown that there are very few incidences where the police served the people as was expected and Kenyans do not therefore see the service that they expect from the supposedly reformed police.

Cases of police excesses have grown at an alarming rate with scores of people reported missing while many more are found dead in different morgues across the country.

Newspapers across the world and news channels CNN, BBC, Arab News, Kyodo and Xinhua among others on Friday gave an extensive coverage to the release of three people at the heart of the high profile case that led to Masengeli’s conviction.

While the contempt charge against Masengeli was dropped, the abduction and the disappearance case of the three, two brothers Aslam Longton, Jamil Longton and activist Bob Njagi is set to continue under the direction of another judge after Justice Lawrence Mugambi recused himself.

Hussein Khalid of Haki Africa says although the three have been released, the country has to know who was holding those people and tough action taken against them.

A new Inspector General Douglas Kanja has been appointed to replace Japheth Koome, but there is little optimism among Kenyans that much will change in the conduct and character of police officers.

Former Kiambu MP Jude Njomo thinks Kenyans will be expecting a lot from Kanja if they think any serious reforms or a better adherence to the rule of law will come or an end to corruption from traffic and general duty police offers.

“Kanja is an experienced policeman. He has come a long way to get to the top. But he has been here for a longtime. If he were to change anything, he could have done so from where he has come from. I don’t see much hope in him because he is part of the system,” says Njomo.

He thinks the best way forward is to get someone from outside the police service like president Mwai Kibaki did when he appointed Inspector General Hussein Ali who came from the military to lead the force.

IG Ali, an eloquent and polished soldier changed the culture of the police force by bringing in new ideas and was also credited with helping quell the 2007 post election violence. Although he was indicted by the International Criminal Court for alleged crimes against humanity, the judges quickly cleared him of any wrong doing.

Kenyans can only hope that IPOA can use its powers to bring order in the police service to stop impunity, extrajudicial killings, excessive use of force, torture and serious levels of corruption among other vices committed by some of the officers.

The situation of hopelessness and frustration painted by IPOA Commissioner John Waiganjo however does not inspire confidence that the institution will bring any meaningful change soon.

“We are not getting enough support from police commanders and their officers because IPOA sometimes cannot get some documents to work with. We have since seen a very violent environment and our officers are not getting any information,” says Waiganjo.

It has also emerged that notices given by IPOA after recent disappearances of many people and police brutality during the Gen Z protests were not responded to by police commanders and the acting inspector general.

Commissioner Karanja told the media that they are now also going out of their way to seek for the intervention of the judiciary for warrants of arrest to be issued to the police commanders as the next recourse.

“We have a tough task particularly here in Nairobi where most of the deaths and disappearances took place. Deployment schedules, arms registers, location of the arms and those holding them have not been released to us,” Karanja lamented.

Furthermore, they have also found little help from health institutions like Kenyatta National Hospital, where they sought medical records to establish those who suffered gunshot injuries from police firearms.

He admitted that given the frustration that IPOA is going through, there is little optimism adding that hooded police officers and those in uniform without identifications numbers during operations are also breaking the law.

“We in IPOA are suspecting there is specific unit that is being send out there to commit these atrocities. That is why we are very frustrated when we don’t information from the police commanders,” added Karanja.

He also complained that IPOA cannot do much as expected by the law and the public when they don’t know where the assigned platoons are coming from, their names, numbers and arms registers.

That also amounts to sabotage against IPOA and that is why there is need for support from the judiciary so that the agency can exercise its independence.

From their observations, it appears the officers send to quell protests are also not properly prepared because of the use of live bullets and an unknown substance that is now sprayed from water cannons that IPOA recently sought to be provided with.

“We have reached a point where we must tell the public our frustrations. We must go to the next level which is the judiciary. All other arms of government must come out to explain what is happening,” says Karanja.

And so as witnessed with the dramatic events in the Masengeli case over the past month, Kenya has not transformed from its past and will probably experience many more years of endemic impunity at various levels of governance and repeated use of the police as a tool of oppression.