Maggie Fick
She was christened Samantha, but her delighted Kenyan parents quickly nicknamed their tiny daughter “Pendo,” which in KiSwahili means “Love.”
Six months later, in August 2017, Pendo was lying in her mother’s arms at their one-room home in the western city of Kisumu when Kenyan police burst in. The riot officers were rounding up suspected troublemakers after opponents of the government had disputed the election result that month.
The police fired teargas and repeatedly clubbed Pendo’s father, and in the melee an officer struck the baby on the head, said Lenzer Achieng, her mother. The police left without arresting anyone; days later, Pendo died from her injuries.
“She was the joy of my heart. Nothing can fill the hole,” Achieng told Reuters as she wept at her home last month.
The baby’s death outraged a nation long hardened to police brutality. Even the national police chief, who has often publicly rejected allegations of police abuse, vowed to investigate. Yet three months later, the Independent Policing Oversight Authority (IPOA), a body created to hold the police to account, said it could not identify any policeman suspected of killing Pendo.
Instead, it recommended to the public prosecutor’s office that it open an inquest to investigate who was responsible. The inquest began on Feb. 19 in a Kisumu court. Prosecutors have the power to summon witnesses, and after the hearings a judge will order a criminal trial if a suspect is identified or end proceedings.
The case underscores how IPOA is struggling to fulfill its remit to hold police to account. IPOA has secured convictions of police officers for committing crimes in only two cases, despite having received more than 9,200 complaints. The first judgment involved two police officers found guilty of shooting dead a 14-year-old girl in her own home. The second conviction came this month when a court found a policeman guilty of murdering a suspected thief in 2013. Sentencing in that case is due on Feb. 27.
Now a Reuters examination of 18 active case files relating to alleged crimes by officers dating back to 2012 has exposed some of the problems the watchdog faces: lack of police cooperation and court delays that drag on for years. The case files show police frequently refuse to give evidence to investigators and repeatedly fail to show up to court.
IPOA’s lack of success fuels anger beyond the families of individual victims. The government of President Uhuru Kenyatta has arrested some political opponents and clamped down on the media. Opposition politicians frequently rail against state brutality at their supporters’ rallies. In November, after at least five of his supporters were killed during clashes with the police in Nairobi, opposition leader Raila Odinga condemned what he called an “unnecessary war by security forces and militia against innocent and law-abiding citizens.”
Macharia Njeru, chairman of IPOA, said the watchdog is making progress. He said it has enough cash and more than 50 investigators to pursue cases. Ministry of Finance documents show the agency had a $5.1 million budget for 2017 and a projected $5.3 million budget for 2018. Njeru blames dysfunction in the Kenyan justice system for the slow progress in securing convictions against culpable police. “The delays in conclusion of cases in court, that is a major problem, but that is outside our control,” he said.
Police Inspector General Joseph Boinnet, his spokesman, the interior ministry, and the presidency did not respond to requests for comment.
Some top Kenyan officials and foreign ambassadors have cited IPOA’s work as the answer to complaints of police brutality. “They are seeking to ensure police officers who do wrong are held to account,” said U.S. Ambassador Bob Godec, saying his government had provided “major support to IPOA, millions of dollars worth in assistance, and training and equipment.”
But the Reuters study raises questions about whether IPOA represents an effective check on the police. It also reflects a broader, global issue: Whether Western nations can encourage better accountability of police forces in countries where the West wants the military to combat threats such as terrorism.
One of the main donors to police reform in Kenya is the United States, which has given $8 million to IPOA since 2011. It has also provided at least $316 million in assistance to Kenya’s military over the same period, according to Lauren Ploch Blanchard, Africa specialist at the Congressional Research Service in Washington. Globally the United States prioritizes providing military assistance over furthering police reform, Blanchard said.
FLAWED FILES
Kenyan police often dismiss complaints of brutality, saying violent crime demands a violent response. In April last year, a video of plainclothes police shooting dead an unarmed man went viral. The police did not deny the shooting, but justified it by saying the victim was suspected of killing an officer.
In comments to Kenyan media after the killing, Nairobi police commander Japheth Koome was quoted as saying when “gangsters” kill police officers, they will “get it” from him. Koome did not respond to requests for comment for this article.
IPOA was set up in 2011 after police killed hundreds of Kenyans during violence that followed disputed elections in 2007. The agency can investigate police on its own initiative or after receiving a complaint from the public, and it has the power to order any serving or retired officer to appear before it and to produce documents. IPOA submits the findings of its investigations to prosecutors, who decide whether to pursue a criminal trial or order an inquest.
While Njeru, the head of IPOA, blames the courts’ glacial pace for failures to convict police who commit crimes, documents reviewed by Reuters show that IPOA has its own administrative problems – despite receiving $5.7 million from the U.S. government for an electronic case management system. In August last year, when Reuters asked for details of current cases, the watchdog said 47 cases were active, either as prosecutions or inquests. However, a list it supplied contained only 38 cases. Five had no case number, making them impossible to trace.
In February, IPOA gave Reuters a new list containing 45 cases it said were active in court. Five had no court case number. IPOA did not respond to a request for clarification on the missing file numbers.
Reuters obtained records for 18 of the cases on the two lists supplied by IPOA; 15 of them involve deaths. Many of these records show police refusing to give evidence to IPOA or failing to appear in court with the case file. Without the file, which contains records of witnesses, evidence, and previous hearings, the case cannot proceed.
“Anything that we want to produce in court is held by the police,” said Esther Kimani, a prosecutor in Kisumu. “It’s the police’s responsibility to make sure the file is available in court.” Police officers may not appear in court because they don’t have transport, are unaware of the date or simply refuse to go, she said.
One Nairobi inquest into the death of a man at the hands of the police was dismissed by the judge in 2016 after six failed hearings, according to court documents reviewed by Reuters. In four hearings, police did not produce the case file, and twice the investigating police officer, who was not identified in the court files, did not show up.
“There is no evidence presented and thus no evidence to be evaluated. Inquest is hereby dismissed,” the ruling read. Magistrate Christine Njagi, who issued the ruling, told Reuters she had inherited the inquest from another magistrate and could not proceed because she did not have the full facts to hand. “It’s for the prosecution to secure the police file,” she said. “We work with what is presented to us.”
The court records reviewed by Reuters do not indicate any action was taken against police who did not cooperate.
The government and police did not respond to requests for comment. Katoo Wambua, a prosecutor who handles communications for the director of public prosecutions, said “there is a bit of lack of cooperation” by police. He said the public prosecutor’s office had organized meetings between IPOA, prosecutors and the police “to iron it out. We try to sort out these problems slowly, in house.”
Not all delays are the fault of the police. In 2016, an inquest was opened on IPOA’s recommendation into the death of a university student found hanging in a Nairobi police station cell in 2013. Sixteen months and six court hearings later, no witnesses have testified. Half the adjournments were because police failed to appear with the case file. But two other adjournments were due to prosecutors failing to show up and to produce a witness, according to court documents reviewed by Reuters.
POLICE OBSTRUCTION
In August, Njeru, the head of IPOA, said police cooperation with his investigations had initially been poor but has improved. “Previously there has been non-cooperation from police officers but that was largely in our formative stages,” he told Reuters at IPOA’s plush new offices.
In a statement to Reuters in February, IPOA gave a different view. “Non-cooperation on the part of the police in some cases with the Authority remains a great challenge in the actualization of some of our investigations,” the statement read.
An IPOA employee and two foreign policing specialists based in Nairobi who work on Kenyan police reform and have direct knowledge of IPOA’s operations also told Reuters that police cooperation continues to be poor, and that evidence and witnesses have often disappeared by the time IPOA investigators reach a crime scene.
The police often flout a 2011 law requiring them to notify the watchdog in writing of any deaths or serious injuries caused by police officers, the IPOA employee said. Instead, investigators sometimes hear about potential cases through media reports. It can take days, even months, for them to get to the scene, a problem Njeru confirmed.
One case that IPOA heard about through the media involved three police who allegedly killed two men in Kisumu. IPOA investigators learned of the case from news reports two days after the killings and did not visit the scene until six weeks later, according to an IPOA report, reviewed by Reuters, that was filed to the Office of the Director of Public Prosecutions. Asked why it took their investigators so long to reach the crime scene, IPOA said in a statement, “We cannot discuss matters that can compromise ongoing court trials.”
The family of one of the victims gave a bullet fragment to the top police official in the city, the report said. The police official subsequently told IPOA he had lost it. The officers are on trial for murder and deny the charges. Two lawyers representing the three policemen on trial said they could not comment because the trial is ongoing.
In addition, police sometimes refuse to hand over evidence such as duty rosters or weapons registers, the IPOA employee told Reuters. Most of the case files reviewed by Reuters lacked such documents – which could help establish who fired a lethal bullet, for example – and other details needed to secure convictions. Only one case in Kisumu had a weapons register supplied by the police in the investigation file.
FEAR OF RETRIBUTION
Nicholas Mutuku, deputy director of public prosecutions, said that when IPOA files make it to court, many cases lack key components, such as post-mortem reports, complete witness statements or the names of suspects.
“IPOA investigates crimes committed by the police. Yet they rely on the same police to assist them,” Mutuku said, sorting through towering piles of files that nearly buried his desk. He has received 84 files from IPOA since January 2015. Mutuku said some were dismissed due to lack of evidence, but declined to give details.
When police obfuscation fails to thwart an investigation, officers may turn to brute force, the two foreign policing specialists said. They cited a widely reported 2016 case where the commanding officer at a Nairobi police station locked up an IPOA investigator trying to serve him a summons. Kenya’s chief prosecutor had to intervene to free him. The IPOA investigator was not named in the news reports. Reuters could not reach the police commander.
In another case, human rights lawyer Willie Kimani sued police on behalf of a motorcycle driver who alleged a policeman had shot and wounded him in 2015. The bodies of Kimani, his client, and their taxi driver were dumped in a river in July 2016. Four police were charged with the murders. They deny the charges and their trial is ongoing. IPOA said it could not comment on the Kimani case because the trial is ongoing. The police did not respond.
Even after arrest warrants are issued, some police still escape justice. The Nairobi High Court ordered two policemen to be arrested in May 2016 for the murder of a civilian. The officers fled and are still at large.
Top police officials ignored multiple court summons asking for an explanation of why the two were not arrested, according to court documents reviewed by Reuters. The last hearing was nearly a year ago. No more are scheduled. The police did not respond to a request for comment.
A spokeswoman for Kenya’s judiciary, Catherine Wambui, said a judge would dismiss a case when he saw it was “heading nowhere.” She said: “The onus is on the prosecution to produce witnesses and bring evidence. If they don’t, the judge has no choice but to dismiss.”
DESPAIRING MOTHERS
As baby Pendo’s parents also face an inquest, they are losing hope. The police have not handed over critical information, such as the roster detailing police deployments in the city on the night the six-month-old was assaulted, according to the two foreign specialists with knowledge of the watchdog’s investigation into Pendo’s death.
Pendo’s mother, Achieng, said: “If they only interrogated the police who were here, they would know who did this terrible thing. The police cannot say they don’t know the officers who were sent to our place.”
Another of IPOA’s unresolved cases is the very first one it took on. It concerns the death of Alexander Monson, a 28-year-old son of a British aristocrat, who was found dead in his cell in 2012 after he was detained during a night out in the coastal town of Diani.
Monson’s mother, Hillary, said the watchdog promised the family that “this would be their showcase investigation.” But there has been no resolution: An inquest was not opened until 2015 and is still ongoing.
IPOA’s investigation concluded Monson died from a drug overdose – which was the account given by police officers present the night he died. But two reports by government pathologists, seen by Reuters, concluded Monson died from blunt force trauma to his head.
“IPOA is a rubber stamp for police brutality … They just don’t want to pin [the death] on anybody,” Hillary Monson said.
IPOA said the account Monson provided to Reuters contained inaccuracies. It declined to give details, saying it could not respond to questions about ongoing cases. -Courtesy: Reuters