Parallels between ‘Shock Doctrine’ and extra-judicial killings in Kenya

Where judicial process is a pre-condition for execution of criminals, security agents have less legal or moral latitude to deal with suspects on their terms

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Police officers patrol along a street in the Kenyan capital, Nairobi on July 23, 2015 less than 48 hours ahead of the expected touch-down of the President of the United States, Barack Obama. US President Barack Obama arrives in his ancestral homeland Kenya late on July 24, 2015, with a massive security operation underway to protect him from Al-Qaeda-linked Somali militants. Obama, making his first visit as president to his father's birthplace, will address an entrepreneurship summit and hold talks on trade and investment, security and counter-terrorism, and democracy and human rights. AFP PHOTO/Tony KARUMBA (TONY KARUMBA/AFP/Getty Images)
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BY KIBE MUNGAI

“The First Group of heroes are those conscientious police who are doing everything they can to institute serious changes as quickly as possible. Given the resistance they face from some politicians and members of their own departments, it’s like trying to reverse the rotation of the earth. Yet they push on… The other heroes to emerge are the relentlessly committed members and supporters of Black Lives Matter.  They show up day after day, in city after city, getting their message across peacefully, articulately and with grace…  In the end, both the police and the protesters who are championing reform will have a greater impact on ending racism than a dozen mass shootings. These men and women embody the displays of virtuous humanity that just might set us free”

— Kareem Abdul-Jabar, NBA champion in Time, July, 25, 2016

The silent phenomenon of extra-judicial executions on a mass-scale is the dark heart of the Kenyan State which must be extirpated immediately; we must find a civilised way of doing it without making every conscientious citizen complicit in the evil.

In the early years of Kenyan Independence, extra-judicial execution was the ultimate price paid by the likes of Pio Gama Pinto, Tom Mboya, and J. M. Kariuki in vicious elite fights over the control of the State.  Similar fates befell Dr Robert Ouko and Bishop Alexander Muge during the Nyayo era. We also know that since the 1960s, bodies of people who lived on the borderlines of the criminal laws would surface up on Ngong Hills and in Karura Forest.

Generally speaking, in those “bad” days, extra-judicial killings were executed somehow discreetly, professionally (assuming the phrase can safely cover brutality) and the numbers were relatively low and therefore “tolerable”.

Almost always, any person who was publicly arrested by strangers who identified themselves as policemen could be visited later in the nearest police station and in few high stakes cases they would turn up weeks or months later in the Chief Magistrate’s Courts in Nairobi or Nakuru badly tortured but, thank God for little mercies, alive!

In 2002 when I joined triumphant crowds of NARC chanting “Yote yawezekana bila Moi” (All is possible without Moi), I thought and hoped that never again would suspects turn up in Court in crutches, and that I would not have to file habeas corpus applications. Looking back, it seems we could not have been more wrong.

In mid-2006, the Mungiki crackdown made extra-judicial executions and mass disappearances common place, with obvious approval of the overwhelming majority of good society. Invariably, I found myself filing a habeas corpus application for Kimani Ruo, who was kidnapped within the precincts of the Supreme Court Building by known officers from the Special Crimes Prevention Unit, then tortured, dismembered and his body parts fed to hyenas.

Again, I thought the extra-judicial killing by Mungiki was just a temporary episode, an aberration on our national conscience occasioned by necessity. At any rate, I am a radical democrat who believes that the majority have a sovereign right to elect a saint, a buffoon, a Barrack Obama, a Nelson Mandela, a Benjamin Netanyahu and even dictators like Yoweri Museveni, Vladimir Putin, Mohamed El Sisi and Paul Kagame.

Therefore, as a radical democrat, I thought that if the majority of Kenyans believed extra-judicial execution of the Mungiki leaders and militia was necessary to cleanse our society from an intolerable underclass, who was I to begrudge the majority their lunacy?

In 2009, Al Shabaab terrorists increased their attacks on Kenya and our armed forces had to invade Somalia. It soon emerged that Al Shabaab had recruited and radicalised hundreds, if not thousands, of Kenyan Citizens, and tough measures would be necessary to protect our country. Good people were therefore forced by necessity to reconcile with the execution of the likes of Sheikh Abubakar Sharif, alias Makaburi, and Sheikh Aboud Rogo Mohamed, as well as other people who could rightfully be described as “enemy combatants”.

At the height of Kenya’s war on Al Shabaab terrorism, we promulgated the Constitution in 2010, which I thought would calm our collective spirit of vengeance that made Mungiki executions possible, and help to create a capable and effective State in Kenya that would eschew clandestine criminal methods in fighting all types of crimes. Tragically, the phenomenon of extra-judicial executions seems to be pushing its frontiers in the new constitutional dispensation.

We can no longer deny that extra-judicial executions is the principal method of fighting violent criminals armed with AK 47 rifles, Ceska pistols, knives, homemade guns and even toy guns.

It is no longer necessary for such criminals to fire at the police and the police to return fire before the suspects bodies are converted into vichungis (sieves) by bullets from police guns. Today the police get away by saying that they intercepted and felled five or so dangerous suspects ‘on their way to commit a robbery’. This is how cheap the fight against crime has made the life of young male Kenyans from the underclass of our society.

Lawyer Willy Kimani, his client Josphat Mwenda and taxi driver Joseph Muiruri were equally young male Kenya citizens, within the same age bracket as tens of their criminal “cousins” who had recently been executed and their bodies dumped in the Ol Donyo Sabuk River, most probably by the same human blood hounds with police badges. Perhaps we should have known that if the lives of youth from Eastlands suburbs of Nairobi became too cheap the lives of their counterparts in the leafy Western suburbs would not retain their premium for long. Tragic as that sounds, it is not the main issue here, for we cannot reverse the deaths of the victims.

The real tragedy for this country is that the 2010 Constitution could not save Willy Kimani and his colleagues. Equally tragic is that whereas in the 1980s my older colleagues, Dr John Khaminwa, Senator James Orengo, Dr Gibson Kamau Kuria, Paul Muite, Gitobu Imanyara and Mirugi Kariuki expected that a habeas corpus application would result into a court appearance for their clients, today, as a I conclude drafting the habeas corpus application for Abdul Karuri Mwangi, an official of Pumwani Riyadha Mosque Committee (a duly registered society), I cannot help wondering whether my labours are in vain or whether his wife and two children will ever see him again.

Given the lives lost, litres of blood shed and the number of limbs broken in the clamour for legal and political reforms that culminated in the Constitution 2010, the patriotic citizens of Kenyans, lawyers and conscientious politicians should not accept or allow the Bill of Rights to become a false prospectus.

The Kenya State must conduct at last 99 per cent of its business under or in accordance with the Constitution. Ideally, a democratic state should conduct 100 per cent of its business under the law but it would be naïve to ignore that in every country the deep State must be given a one percent latitude to kill “enemy combatants” and other dirty jobs that States must do for their own survival.

What should worry educated society is when a state begins to conduct 10 – 30 per cent of its business outside the framework of established legal order. The way I see it is that in the sectors of political finance, the war on terror, public order, national security and the criminal justice system, the Kenyan State is conducting an increasing ratio of its affairs outside the legal order. This is not good for Kenya’s reputation and future as constitutional democracy, and we must ask ourselves why that is so, starting with the criminal justice system.

At its very core, the State is an embodiment of violence, and quite often States routinely carry out killings within and outside the framework of their laws. The arms industry is big business globally because human beings are violent creatures who are easily inclined to kill their fellow people to get their way. It will not help us at all to deny such obvious, albeit inconvenient, truths about the real nature of States.

In the US, there is widespread public outcry over the rising numbers of unarmed black men killed by white policemen despite the fact that President Barrack Obama, the Commander-in-Chief, is an African-American. In fact, I cannot help wondering how many black American men will have to die this way if Donald Trump with his white supremacist views comes to power next January. To underscore the enormity of the challenge, the Time Magazine issue of July 25, 2016 has published the letters of a black father and his son.  In his letter, Eddie Glaude tells his son Langston:

“I find myself, more often than not ‒ and upon reflection, this is an astonishing thing to say, no less think ‒ wishing you were 7 years old again. You were adorable at 7. The vexations of the teenage years were far off, and you still liked me. I say this not because I find having an empty nest unbearable, or that I long to raise a teenage again; I say it because I feel that you would be safer at home, with us…”

In a moving reply his son states:
“In these times of injustice, great anger and grief, I find myself consistently asking, ‘What would my father do?’ Crazy, right? I’m actually listening to your advice for once. But it’s knowing that you love and support me that gives me some sense of safety in this cruel world. And that is everything I need. Funny, I, too find myself wishing that I were a kid again. The world seemed so much simpler. But then I remember Tamir Rice. I remember Trayvon Martin, Michael Brown and Aiyana Jones.  I look at the faces of countless black bodies piling up in our streets. And I remember my own experiences with police officers as a kid. The struggle must continue, for our future’s sake…”

Reading these letters, it bled my heart that the climate of impunity and cheap deaths pervading our country have made me imagine, like Francis Imbuga in Betrayal in the City, that perhaps Kenya was a better place during the Nyayo Era.  When you think about it hard enough, extra-judicial executions have become routine because the top echelons of the State have lost faith in the criminal system and probably they lack the will and imagination to mend it.

In The Shock Doctrine, the 2013 best seller subtitled The Rise of Disaster Capitalism, Naomi Klein details how the deep State in the USA has effectively seized State power and used it to conquer the world, using torture and mass killings in the name of war on terror, advancement of democracy and free markets before it turned its attention to the USA itself.

This deep State is historically allied to the Republican Party, and it seems to me the rise of Donald Trump is a direct consequence of a revolt against its order. In the coming months, this American deep State that Naomi Klein refers to as a Corporate State might embrace Hillary Clinton, the Democratic Party Candidate, with the consequence that American voters will lose either way.

What is happening in the USA should worry all of us because across the world, the Corporate State is on the rise. Interestingly, as Kenya has burnished its credentials as a corporate state in recent years the kind of shocking tales in The Shock Doctrine have become all the more common within our shores.

It seems to me that democracies will be in great imperil unless they somehow allow the deep State to do as much of the bad things it wishes to do in accordance with the law. Put bluntly, when Turkey’s President Recep Tayyip Erdogan seeks to change the laws in order to get retrospective powers to try his opponents and hang them, perhaps he should be applauded rather than condemned because his counterparts elsewhere are executing problematic citizens without show trials or fig leaf of legality.

In my opinion, there is an interesting connection between judicial and extra-judicial executions by States, particularly in the Third World. Wherever and whenever the judicial process is a pre-condition for execution of criminals, security agents have less legal or moral latitude or justification to deal with suspects on their terms. Since in Kenya every teenage criminal knows that the State is a averse to execute criminals that the courts have authorised it to kill, capital punishment is a hollow threat as a deterrent to serious crime.

Similarly the rest of society know that courts do not offer an effective means to deal with robbers, terrorists, murderers and other serious criminals and so over the years Kenyans have been conditioned to hope and expect that such criminals should be dealt with by the various special police squads.

When I joined the legal profession in 1998, many police stations had a section commonly referred to as a “dancing room” because this is where dangerous criminals were tortured for whatever reasons. Many of them lived to tell their stories and give lobby groups such as my previous employer People Against Torture (PAT) work to do.

However, torture has the tendency to give a bad name to the police and the State. Accordingly, after the Narc Government came to power in 2003, many of the “dancing rooms” were closed and torture in police cells is now the exception rather the rule. Unfortunately, the closure of the “dancing rooms” meant that the serious criminals that would have been previously tortured are now routinely executed by the roadsides and in the bushes.

I must confess that I have written this article with a heavy heart. The two officials of the mosque society I represent are (I wonder whether ‘were’ is more appropriate) my friends. Dr Abdalla Iddi is a medical doctor while Abdul Karuri is a youth leader in Democratic Party of Kenya ‒ I consider it too conservative for my tastes.

Unless the ATPU presents credible evidence to the contrary, I am 100 per cent sure that none of them was a terrorist.  Both have a Kikuyu lineage but it seems to me their parents made a mistake to convert to Islam. In fact when Sofia Juma – Abdul’s wife – was narrating to me the vain efforts she has made to trace her husband, I struggled to refrain from asking her whether it was all that necessary for her and Abdul’s children to remain in Islam.^

Writer is a practising Constitutional Lawyer

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