Do you know there was a time police could kill any Kenyan of Somali origin and get away with it? Those were the days of the “shifta” who would terrorise North Eastern province. They were such a threat to national security that if a Somali man was shot by police and branded as a “shifta”, nobody asked questions.

No one even questioned the fact that police in the province often operated without wearing any identification number. But, as happens with extrajudicial killings, this aggression against Somali men got out of control.

After the police became confident that they would never be called to account for any killings in the region, they invariably misused their power. And a well documented incident was that of a Somali businessman called Abdi Mathobe in 1980.

Mathobe fell out with government officials that he was said to be doing “business” with. The officials sent soldiers from the game department, who arrested him and placed him in custody. While there, he was tortured, castrated and his property confiscated.

No authority for justice

When he was released, he had no authority to turn to for justice. He picked a gun and conducted a one-man war against the government officials. He launched an attack on the district officer attached to Dadaab, called Johston Welimo, as he rode into Garissa, killing him and three other civil servants. The Government responded by surrounding Garissa town looking for Mathobe.

The result is today known as “the burning of Garissa”. In a one-week operation, police razed people’s houses, shot an unknown number of men and raped countless women.

We are going to hear many more similar incidents when the truth, justice and reconciliation commission begins its work. But in the meantime, we must ask ourselves how much we are learning from our history.

And I believe that one lesson we must learn is that we all must be concerned about the issue of extrajudicial police killings. From the late 1980s to the late 90s, when the crime rate was uncontrollable in Kenya, police mounted a crack down on violent criminals. Special teams were formed and, after a while, the clampdown paid dividends. And the country became safer. But the killings did not stop. Soon, there were cries from families claiming that their members had been killed maliciously or on flimsy evidence.

The most dramatic of the cases was that of Stephen Mbaraka Karanja, who had been summoned to the CID headquarters in Nairobi for interrogation on suspicion of car theft. He was never seen again. Later in court, police claimed that Karanja had taken them to Eldoret to show them where he kept guns. He tried to run away so they shot him, they added. When asked where his body was, they claimed that they had buried it at the public cemetery. When the court ordered them to exhume it, the body had disappeared.

So what is happening in Kenya today is not new. In fact, it is disturbing. Because before long, after police have cracked down on the Mungiki, our historical experience says that they will invariably turn on people whose culpability is questionable.

Already, there are families who are protesting the innocence of their members who were shot by police as being Mungiki members. There are two reasons we all must be concerned about the way police crack down on crime.

Firstly, as stated by American supreme court judge Felix Frankfurter, about 60 years ago, “it is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people”.

The best way to gauge one’s protection under the law is by looking at how the people who are least deserving of consideration are treated. If police can shoot any criminal outside the law and get away with it, then know that they can shoot you, too, with equal impunity. Human rights activists are therefore always concerned with the way the law and the enforcement agencies act during a crisis. The restraint or abandon exhibited by police in such situations is always a good indication of how they will deal with people outside the crisis.

 

It is therefore comforting that the Government agreed on a less militant approach to the Alston report. The issue is not if we are in a security crisis, it is if police have power to act with impunity. By promoting police operations as the only solution to crisises, we fail to see the other underlying sociological and political factors that must be addressed if the problem is to be solved.

1948

When US Supreme Court judge Felix Frankfurter uttetted his famous words

The second reason we must all be concerned about the Mungiki killings is the lesson we learn from a German evangelist called Friedrich Gustav Emil Martin Niemoller, who had been an officer in the German navy and commander of a naval boat during the First World War. He had also been a great supporter of Adolf Hilter. In 1931, he decided to follow his father’s footsteps and became an evangelist. As a pastor, he began opposition to the increasing Nazi influence and their interference with church affairs.

In 1937, he was arrested by the Gestapo and detained at various concentration camps for eight years until 1945 when he was released by the allied forces.

Let us not take comfort in the fact or claim that it is all being for our benefit. As a famous person once said, a government that is strong enough to give you all you want is also strong enough to take it away.

Mr Mwangi is an advocate of the High Court.