Former Inspector General of Police Japheth Koome could be dragged through a landmark criminal trial for the acts of officers under his command who violently disrupted a doctors’ peaceful protest in April last year. 

Members of the Kenya Medical Practitioners and Dentists Union were at the time demonstrating over delayed posting of medical interns and payment of fees for postgraduate students. 

KMPDU secretary general Davji Atela suffered serious injuries as he led the strike. He was hit by a tear gas cannister, sustaining deep cuts in the forehead. 

It’s such acts that the High Court ruled Koome could be held criminally responsible for while making reference to Atela’s injuries.

“The respondent could and can properly be subjected to a criminal trial for the acts or ommissions of the officers under his command if those acts fit the description of offences as defined in law,” Justice Jairus Ngaah said.

Koome had issued a directive to the police to deal with the striking medics “firmly and decisively in accordance with the law.”

He took issue with the protests, saying they had become a public nuisance and posed a threat to public safety and security.

What followed was the case filed in court by the Institute for Social Accountability and seven other human rights organisations. 

They submitted before court that Koome’s decision was made “in defiance of logic” and that no reasonable and informed IG would profess to cancel constitutionally provided for rights “on a whim.”

They argued the decision to cancel the strike was in violation of Article 24 of the constitution, which requires there be a rational connection between a limitation of a constitutional right and the purpose of the limitation.

The respondents, among them Koome, never filed any response or affidavit to counter the claims made by the applicants in the case.

The judge said that “although on the face of it the statement by the police appeared to have been an innocent communication, it was laced with veiled threats against further demonstrations by the KMPDU members in exercise of their right to picket.”

“I interpret the respondents’ statement that ‘all respective police commanders have been instructed to deal with such situations firmly and decisively in accordance with the law’ to have been no more than a threat to disrupt the union members’ demonstrations and to subdue their resolve,” the judge said. 

He said if at all Koome and his team had any information that “non-medics” intended to join the strike to cause havoc and terror, it was his duty to arrest such elements and foil any attempts to cause the alleged terror without necessarily interfering with the doctors’ right to picket. 

“And as much as Koome may have been aware of the infiltration of the KMPDU members’ demonstration with characters that were out to cause chaos, he had the constitutional obligation to ensure national security.” This should have been done in compliance with the law and with respect to human rights and fundamental freedoms.

He emphasised it is possible for Koome and the police under his command to maintain law and order even as the citizens exercise their rights under Article 36 of the constitution.

Justice Ngaah allowed all prayers sought by the applicants, expect special remedies that the court supervises certain actions to be taken by the Inspector General of Police.

The court also said it could not grant the prayer for damages sought as compensation to Atela for the injuries he sustained, as it was not able to assess the damages payable in the absence of any evidence of the extent of the injuries suffered.

It, however, declared that Koome was accountable and personally liable for the acts or omissions of officers under his command while he issued “unconstitutional orders to his officers to use unlawful  force to disperse peaceable and unarmed strikers last year.”

Ngaah at the same time blocked the Inspector General from enforcing the April 14 decision to suspend Article 37 of the constitution, which protects the rights of citizens to peacefully assemble, demonstrate and picket.

The judge ultimately quashed the April 14 decision that purported to suspend the article of the constitution by cancelling the union’s right to strike peaceable and unarmed. 

“It is apparent from Koome’s conduct that he did not understand correctly the constitutional provisions regulating the functions of his office and his decision-making power. And as far as the union members’ rights are concerned, he never gave effect to these provisions,” the judge said.

In closing, Ngaah said the decision deprived the union members of their rights yet they were never given any opportunity to be heard prior to the decision being made.

“I am satisfied that the decision of Koome was bereft of procedural fairness towards the KMPDU members.”

Nora Mbagatji, executive director of Katiba Institute, one of the petitioners, welcomed the decision.

“Today’s judgment establishing personal liability for grave constitutional violations is an important reminder of the accountability avenues and protection our constitution affords us. Everyone should be aware that excuses of just following orders or reliance on the perceived protection of a job title will not stand up in a court of law or the court of public opinion.”

Katiba’s litigation counsel also welcomed the decision of the court, describing Ngaah’s finding that the Inspector General of Police can be held personally responsible for the actions of the police under him, as just.

By holding that the former IG was personally responsible for the actions of the police who violently interfered with the enjoyment of the right to protest, the court has reminded the state that it does not grant human rights and any exercise of power by public officers must be accounted for. The court has finally entrenched accountability in the exercise of police powers,” Joshua Nyawa said.

Kenyans on X platform also welcomed the decision, with many posting that none is above the law and that police officers should be held responsible for their actions.

This article was first published by the Star Newspaper https://www.the-star.co.ke/news/2025-01-09-ex-police-boss-koome-to-face-music-for-police-brutality

Image: Ezekiel Aming’a