Tuesday, July 19, 2005

The Kenya Police Should Not Break the Law on July 19th

Onyango Oloo Is Worried About a Crime Spree From the Utumishi Kwa Wote Crew...

"...The Cuban Revolution hadn't triumphed yet. My idol was Sandino, and also Christ. I was brought up a Christian, but I regarded Christ as a rebel, a revolutionary, someone who had committed himself to the poor and the humble and never sided with the powerful. I had a Christian upbringing, so I would say that my main early influences were a combination of Christianity, which I saw as a spur to change, and Sandinism, represented by the resistance against the Yankee invasion. Later, the triumph of the Cuban Revolution was very influential, and Fidel, Che, and Camilo [Cienfuegos] became our main role models. There were also wars going on in Algeria and in Vietnam, which further encouraged us to believe that victory was possible..."

Ex-President Daniel Ortega, current leader of the Official Opposition in Nicaragua

1.0.Can Emilio Emulate Enrique?

It is somehow fitting that the projected mass action by a broad coalition of Kenyan democratic forces slated to take place in Nairobi on Tuesday, July 19, 2005 just happens to fall on the exact day marking the 26th anniversary of the victory of the 1979 Sandinista Revolution which swept away an arrogant, venal neo-colonial and repressive kleptocracy after a series of general strikes, urban uprisings and rural guerrilla attacks that increasingly demoralised the National Guard. Despite an overwhelming superiority in arms and ruthless tactics that included the aerial bombardment of Nicaraguan cities, Somoza's army disintegrated; he fled the country on 17 July 1979, and was later assassinated in Paraguay. Two days after Somoza's departure, the Sandinistas entered Managua and were greeted by huge crowds as national liberators.

Part Two of the Sandinista story of course is their crushing humiliating electoral defeat on February 25, 1990 by a centre-right coalition. They have lost three consecutive elections although they still remain the largest opposition party in Nicaragua today.

Strangely enough it is not to my Nicaraguan leftist fellow travelers that I turn to for inspiration this evening.

My exemplary leader is ironically someone whose politics I would shun ferociously-he is a right wing, pro-Bush fat cat who cannot stand his ideological opposite numbers in the FSLN.

Enrique Bolaños just so happens to be the sitting Nicaraguan president.

What is there to admire about Enrique Bolaños?

Not much if we are to be completely candid.


What's the Dealio?





Missy Elliot once wondered in song?

What's the dealio?

Well, why don't I let the Central American neo-con explain himself, ama?

This is what the man wrote in a certain US far right rag(beg your pardon, respectable newspaper):

...We soon learned more details of the Sandinista plan. After a few days of street protests, the Sandinistas would convene a march on April 26 directly on the Presidential House, ostensibly to demand "a dialogue" with the president. We feared they might push through the police lines and strike the Presidential House. If that happened, the police would be compelled to use live ammunition or the Army special reaction force would spring into action. In either case, the objective was to instigate "human rights violations" by a "bloodthirsty" government and use the incident to spread protests and chaos throughout the country. Sandinista organizers in the provinces outside Managua lay in wait to spread the chaos.
I know complex problems often require simple solutions. On the night of April 25, I discussed the situation with my family, especially my most trusted adviser, my wife Lila. We all agreed a bold move, an audacious and complete surprise was needed.
The next day, as the protest neared the Presidential House, I announced to my startled Cabinet that I would go out to meet the protesters and invite their leaders to join a dialogue. My security chief immediately and vigorously protested. I told him this was needed.
My ministers and I drove near the protest and got out of our vehicles. With only my head of security at my side, I advanced toward the protesters, with my ministers 10 paces behind me. This gesture of an unarmed 77-year-old president calmly advancing toward the rowdy protest completely disoriented the protest organizers. They did not know how to react. Some members of the protest started throwing rocks and bottles of water and launching homemade projectiles at us.
I reached the protesters, held my hands out to them and made a public call for the four main protest organizers to join us in a serious dialogue to solve this problem of public bus fares.
With the rocks still falling, a group of riot police stationed a block away came to cover our return to the vehicles. There was only one casualty, not serious: my son, who was hit in the head with a rock and taken to the hospital for stitches.
The entire nation witnessed the incident on television. Within 20 minutes, the streets were vacant and the burning of tires and vehicles had stopped. When I returned to the Presidential House, my wife was waiting. She said, "I knew God would help us and it would all come out OK." The next day all major leaders signed an agreement on the bus fare issue. The protests ceased and buses rolled again in the streets of Managua...

Here is the full Washington Times Op-Ed for those who want to drink from Enrique Bolaños' precious fount of wisdom.

You know what I am wondering out loud about?

I am wondering if our very own President Emilio Mwai Kibaki is capable of pulling off a stunt like the one the 77 year-old Nicaraguan head of state pulled on his leftist opponents three months ago.

I can hear some of you muttering to me:

"Oloo, please do not hold your breath."

Shrug. Sigh. Shrug.

2.0. Do Kenyan Law Enforcement Officials Have a Duty to Uphold Human Rights?

It may be more than a little startling swali to millions of fellow Wananchi who normally associate our askaris especially the riot cops with those bakulis with pure unbridled public thuggery peppered with swear words targeting the pudendas of their antagonists' mothers to expect our police and related security forces to have any respect for human rights at all.

It may seem oxymoronic to expect Kenyan policemen and police women to stand up for peace, democracy and social justice in Kenya- the BBC tagged them as Kenya's top killers in a 2002 news story.

But here is the shocker folks:

That is exactly what they are expected to do all the time, believe it or not.

Now I am pretty sure there are a lot of Doubting Mutisos and Skeptical Atienos out there who simply think I am conjuring this out of thin air.

Show us the "evidence" I hear the chorus chiming in cyberspace.

Which therefore leads me to dutifully present this link to the United Nation's Code of Conduct for Law Enforcement Officials.

Here are some relevant excerpts:

Article 2

In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.


(a) The human rights in question are identified and protected by national and international law. Among the relevant international instruments are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the Convention on the Prevention and Punishment of the Crime of Genocide, the Standard Minimum Rules for the Treatment of Prisoners and the Vienna Convention on Consular Relations.

Article 3

Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.


(a) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.

(b) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.

(c) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.

Article 5

No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment .


(a) This prohibition derives from the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly, according to which: "[Such an act is] an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights [and other international human rights instruments]."

(b) The Declaration defines torture as follows:

". . . torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners."

(c) The term "cruel, inhuman or degrading treatment or punishment" has not been defined by the General Assembly but should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental.

Article 6

Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.


(a) "Medical attention", which refers to services rendered by any medical personnel, including certified medical practitioners and paramedics, shall be secured when needed or requested.

(b) While the medical personnel are likely to be attached to the law enforcement operation, law enforcement officials must take into account the judgement of such personnel when they recommend providing the person in custody with appropriate treatment through, or in consultation with, medical personnel from outside the law enforcement operation.

(c) It is understood that law enforcement officials shall also secure medical attention for victims of violations of law or of accidents occurring in the course of violations of law.

Amnesty International came up with 10 Basic Standards for Law Enforcement Officials. Here is one relevant passage:

Basic Standard 3:
Do not use force except when strictly necessary
and to the minimum extent required under the circumstances

The implementation of Basic Standard 3 involves, among other things, that Police officers, in carrying out their duty, should apply non-violent means as far as possible before resorting to the use of force. They may use force only if other means remain ineffective or without any promise of achieving the necessary result. Basic Standard 3 must be implemented in accordance with Basic Standard 4 and 5.

Whenever the lawful use of force is unavoidable, police officers must:

* Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved
* Minimize damage and injury, and respect and preserve human life
* Ensure that all possible assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment
* Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment
* Where injury or death is caused by the use of force by police officers, they shall report the incident promptly to their superiors, who should ensure that proper investigations of all such incidents are carried out.

Sources include: UN Code of Conduct for Law Enforcement Officials (Article 3), UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Principles 4, 5, 6 and 9)

Basic Standard 4:
Avoid using force when policing unlawful but
non-violent assemblies. When dispersing violent assemblies,
use force only to the minimum extent necessary.

Everyone is allowed to participate in peaceful assemblies, whether political or non-political, subject only to very limited restrictions imposed in conformity with the law and which are necessary in a democratic society to protect such interests as public order and public health. The police must not interfere with lawful and peaceful assemblies, otherwise than for the protection of persons participating in such an assembly or others.

The implementation of Basic Standard 4 involves, among other things:

* In the policing of assemblies that are unlawful but non-violent, police officers must avoid the use of force. If force is indispensable, for example to secure the safety of others, they must restrict such force to the minimum extent necessary and in compliance with the other provisions in Basic Standard 3
* Firearms shall not be used in the policing of non-violent assemblies. The use of firearms is strictly limited to the objectives mentioned in Basic Standard 5
* In the dispersal of violent assemblies police officers may use force only if other means remain ineffective or without any promise of achieving the intended result. When using force police officers must comply with the provisions in Basic Standard 3
* In the dispersal of violent assemblies police officers may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary to achieve one of the objectives mentioned in Basic Standard 5 and in accordance with the provisions in Basic Standard 3 and Basic Standard 5.

Sources include: UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Principles 9, 12, 13, and 14)

Basic Standard 5:
Lethal force should not be used except when strictly unavoidable
in order to protect your life or the lives of others

The use of firearms is an extreme measure which must be strictly regulated, because of the risk of death or serious injury involved. The implementation of Basic Standard 5 requires, among other things, that police officers must not use firearms except for the following objectives and only when less extreme means are insufficient to achieve these objectives:

* In self-defence or in defence of others against the imminent threat of death or serious injury
* To prevent the perpetration of a particularly serious crime involving grave threat to life
* To arrest a person presenting such a danger and resisting the police officer's authority, or to prevent his or her escape

In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

Police officers must identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the officers at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.
Rules and regulations on the use of firearms by police officers must include guidelines that:

* Specify the circumstances under which police officers are authorized to carry firearms and prescribe the types of firearms and ammunition permitted
* Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm
* Prohibit the use of any firearms or ammunition that cause unnecessary injury or present an unnecessary risk
* Regulate the control, storage and issuing of firearms and ammunition, including procedures for ensuring that police officers are accountable for firearms and ammunition issued to them
* Provide for warnings to be given, if appropriate, when firearms are to be discharged
* Provide for a system of reporting and investigation whenever police officers use firearms in the performance of their duty.

Sources include: UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Basic Principles 9,10 and 11)

Basic Standard 6:
Arrest no person unless there are legal grounds to do so,
and the arrest is carried out in accordance with lawful arrest procedures

To make sure that an arrest is lawful and not arbitrary, it is important that the reasons for the arrest and the powers and identity of arresting officers are known. Therefore the implementation of Basic Standard 6 involves, among other things:

* Arrest or detention shall only be carried out strictly in accordance with the provisions of the law and by competent officials or persons authorized for that purpose
* Police or other authorities which arrest a person shall exercise only the powers granted to them under the law
* Anyone arrested must be informed at the time of arrest of the reasons for the arrest
* The time of the arrest, the reasons for the arrest, precise information identifying the place of custody, and the identity of the law enforcement officials concerned must be recorded; in addition, the records must be communicated to the detained person or to his or her lawyer
* Officials carrying out an arrest should identify themselves to the person arrested and, on demand, to others witnessing the event
* Police officers and other officials who make arrests should wear name tags or numbers so that they can be clearly identified. Other identifying markings such as the insignia of soldiers' battalions or detachments should also be visible
* Police and military vehicles should be clearly identified as such. They should carry number plates at all times.
* A person should not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other officer authorized by law to exercise judicial power, and be entitled to a trial within a reasonable time, or to release. It should not be the general rule that persons awaiting trial are detained in custody, but release may be subject to guarantees to appear for trial.
* All detainees should only be kept in recognised places of detention. Such places of detention should be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention.
* The detention of refugees and asylum seekers should normally be avoided. No asylum-seeker should be detained unless it has been established that detention is necessary, is lawful and complies with one of the grounds recognized as legitimate by international standards. In all cases, detention should not last longer than is strictly necessary. All asylum-seekers should be given adequate opportunity to have their detention reviewed by a judicial or similar authority. Reference regarding the detention of refugees and asylum seekers should be made to the competent authorities, as well as to the office of the United Nations High Commissioner for Refugees (UNHCR) and other refugee assistance organizations.

Sources include: UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Principles 2, 8, 10, 11, 12, 20 and 29), UN Standard Minimum Rules for the Treatment of Prisoners (Rule 55), UN Convention relating to the Status of Refugees (Article 31), Conclusion 44 of the UNHCR Executive Committee

3.0. Who Will Police the Police During the July 19th Mass Action?

From left, Parliamentary Select Committee chairman Simeon Nyachae, Vice President Moody Awori and Constitutional Affairs minister Kiraitu Murungi at a retreat to discuss the contentious issues in the Bomas Draft at the weekend. Photo by Gideon Maundu. SOURCE: Daily Nation.

Otieno Ombok, a member of Chemi Chemi ya Ukweli, addresses a press conference on Kenya Constitution review process where they called for peaceful demonstrations on July 19th and July 20th. With him are Wanjiku Miano, the executive director of the Kenya Human Rights Commission, and Mary Njeri Gichuru, the deputy executive director of Citizens Coalition for Constitutional Change.SOURCE: The East African Standard.

There is already an assumption in certain quarters that it is the peaceful pro-democracy protestors who are hell bent on breaking the law and that the cops will be there to maintain law and order.

Indeed this is the rash conclusion that police chief Ombati has already rushed to:

...And in a dramatic move last night police condemned the planned protests as illegal, and said intelligence reports indicated some people were planning to use the protests as a cover "to cause chaos and mayhem in the city centre."

Others were planning to loot property and disrupt the peace, said the statement signed by Press spokesman Jasper Ombati, for police commissioner Hussein Ali.

In addition, those planning the protests had failed to give the police 14 days' written notice, and the protests were therefore illegal, said Mr Ombati.

The statement called on the public not to join the demo, and added, "The police will be present to enforce the law with a view to ensuring that law and order prevail." SOURCE: Daily Nation.

With that statement Jasper Ombati has signalled quite plainly that the Kenyan police is eager and raring to continue its long assault against constitutional and democratic rights by demonizing and criminalizing peaceful, justice seeking campaigners and activists hankering to defend such freedoms as freedom of expression, freedom of association, freedom of assembly, freedom of movement and freedom of conscience.

Unless Ombati is telling Kenyans that we do in fact live in a police state, he is completely out of line trying to stifle his own employers(the voters and the taxpayers that maintain the police service and other security forces) from ensuring that the country we live in is a country governed by laws.

The July 19th and July 20th mass actions are to AFFIRM the rule of the law- as in the SUPREMACY of a democratic constitution that was overwhelmingly endorsed, after a transparent, wide-ranging, nation wide consultative process; moreover what Kenyans are coming out to demand on July 19th and 20th is our right to have a democratic framework that will oversee issues of governance, accountability and transparency in the Kenya we all want to live and thrive in. One of the cardinal things enshrined in the Bomas Draft is a Bill of Rights that makes it plain that the decades long reign of terror by trigger-happy, often TKK demanding makarau belongs in the bad old days of the KANU and soon to be gone not so old days of NARC abrogation and violation of the wananchi's fundamental democratic rights.

It is for this reason why I am calling for the IMMEDIATE arrest of any member of the police-uniformed or incognito- who tries to molest, punch, kick, abuse,rob, torture or otherwise aggress against peaceful pro-democracy participants in the two days of mass action in Nairobi.

One small problem:

Who will arrest the police?

Onyango Oloo

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