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Extrajudicial executions and destabilisation: a canary for Kenya’s future security?

On 30 June 2016 the bodies of Willie Kimani, Josephat Mwenda and Joseph Muiruri were discovered in Ol-Donyo Sabuk River, 73km northeast of Nairobi. Kimani, a prominent International Justice Mission lawyer, his client Mwenda and their taxi driver Muiruri had been missing for a week. Prior to his death, Kimani was representing Mr Mwenda in a case involving an Administration Police Officer who had reportedly shot and injured Mr Mwenda in a routine traffic stop. Post-mortem autopsies revealed that, prior to death via blunt force trauma, Kimani had his genitals crushed while Muiruri was strangled with a rope.

Amnesty International’s East Africa’s branch heralded the incident as a ‘chilling reminder’ of the dire human rights situation in Kenya. However, in a legal system marred by corruption, a landmark case has emerged. On 18 July four police officers allegedly involved in the murders appeared before Kenya’s High Court.

With memories of the 2007 post-election violence lingering and the 2017 Presidential election on the horizon, this case presents the Kenyan judiciary an opportunity to promote internal stability. If a legitimate ‘guilty’ verdict emerges, it will also promote a precedent of accountability towards Kenyan security forces, who have been long accused of arbitrary arrests and extrajudicial killings under the guise of ‘anti-terrorism’.

There is no doubt that rampant corruption stifles Kenya’s justice system. Independent corruption watchdog Transparency International ranks Kenya 139 out of 167 countries regarding systemic corruption. This verdict was reiterated in a prominent audit of Kenyan government accounts, drafted by the highly respected Auditor General Edward Ouko. This report found that only 1.2% of the country’s annual (2013-2014) US$10 billion was accurately accounted for, with US$600 million unaccounted for entirely. For a transparent conviction to be reached, prosecutors must avoid the allure of corruption that plagues Kenya’s institutions.

With Kenya’s next general election set for 8 August 2017, Kenya’s judiciary should capitalise on the opportunity to denounce misconduct within the country’s security forces to avoid post-election violence mirroring that of 2007-2008. In December 2007 Mwai Kibaki’s Party of National Unity’s (PNU) controversial election victory was met with accusations of vote fixing and intimidation. This triggered widespread violence along ethnic fault lines, resulting in the deaths of 1,133 civilians and the displacement of 500,000 others. International mediation and a power-sharing agreement between President Mwai Kibakei and current Prime Minister Raila Odinga ended the violence in February 2008 and set up the Commission of Inquiry on Post-Election Violence (CIPEV).

The 529-page report from the commission was publically released on 15 October 2008 and reported 3,561 injuries and 1,133 civilian deaths. This report was largely considered lacklustre as it failed to publically disclose perpetrators, nor hold them accountable for the violence. Then UN Secretary-General Kofi Annan handed the report to ICC Prosecutor Luis Moreno-Ocampo due to Kenya’s failure to pursue the findings and hold perpetrators of the violence responsible.

A public and transparent prosecution of those involved in the deaths of Kimani, Mwenda and Muiruri would be invaluable to the public image of Kenya’s legal system. It would promote accountability within Kenya’s security forces, which is persistently accused of enforced disappearances and extrajudicial killings under the guise of ‘anti-terrorism.’ Following prominent al-Shabaab attacks within Kenya, including the Westgate Mall Massacre and gun attacks in Mombasa and Eastleigh, ‘Operation Usalama Watch’ was launched on 4 April 2014. Under this operation Kenya’s ‘Anti-Terrorism Police Unit’ (ATPU) was allocated sweeping powers of detainment in the prevention of ‘terrorism’, which have been decried as counterproductive.

Although justified in principle, the ATPU is a regular catalyst for ethnic discrimination and violence. In blatant disregard for international and domestic legislation, ‘anti-terrorist’ violence is often the pretext for widespread extortion, arbitrary arrest, enforced disappearances, and extrajudicial killings of ethnic Somalis. Various police units, including the ATPU, are regularly implicated in these accusations. In the first week of ‘Operation Usalama Watch,’ Cabinet Secretary Joseph Ole Lenku estimated that over 4,000 individuals had been arrested. Amnesty International reports that ethnic Somalis are regularly detained for days without charge, and that many inmates commonly were extorted for money in exchange for their release. In 2014 Human Rights Watch documented death threats and 10 cases of extrajudicial executions of terrorist suspects by the ATPU. Counterproductively, the marginalisation of ethnic Somalis by the ATPU plays the disenfranchised population into the hands of radical organisations, such as al-Shabaab.

A fair and open trial for those allegedly involved in the murders of Kimani, Mwenda and Muiruri would be emblematic for Kenya's justice system. If prosecutors and legal staff can overcome the systemic corruption within Kenya’s legal system, a landmark precedent promoting accountability of security force officers could be set. Furthermore, with the 2017 general elections dawning, a decisive verdict here would afford Kenya’s political system a degree of stability.

Tom Connolly is completing a Bachelor of Arts majoring in International Politics and History at the University of Melbourne.

Image credit: US Army Africa (Flickr: Creative Commons)

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