Torture, Extrajudicial Killings and the Constitution


KenyaThere have been numerous cases of torture and extra-judicial killings in Kenya in the recent past. This is notwithstanding the constitutional guarantee of right to life in provision against torture, inhuman or degrading to treatment.
Members of the police and armed forces regularly beat up, kill or maim protesters, criminal suspects and, in some cases, innocent persons. In Kenya, gunshots and clubs are still instruments of compliance/obeisance employed by the security forces. The police on a regular basis employ torture as a means of extracting confessional statements from suspects.
According to the UN Special Rapporteur on extrajudicial executions, Mr. Philip Alston, killings by police in Kenya are systematic, widespread and carefully planned. They are committed at will and with utter impunity.

Torture and extra-judicial killing
Torture, according to the UN General Assembly, constitutes an aggravated and deliberate form of cruel, inhuman and degrading treatment or punishment. To the European Commission on Human Rights, the word ‘torture’ is often used to describe inhuman treatment, which has a purpose such as the obtaining of information or confessions, or the infliction of punishment, and is generally an aggregate form of inhuman treatment.
Article 25 of the Kenyan Constitution 2010 provides that:
“……. no person shall be subjected to torture or inhuman or degrading treatment”.

‘Extra-judicial’ means happening out of court; out of the jurisdiction of the proper court. Thus, extra-judicial killing means killing not sanctioned by a court of competent jurisdiction in the process of criminal trial.
Doing so violates fundamental international and constitutional laws.

Article 3 of the Universal Declaration of Human Rights states: Everyone has the right to life, liberty and security of person.
Article 6 of the International Covenant on Civil and Political Rights states: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Common Article 3 of the four Geneva Conventions states: The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” are prohibited at all times under all circumstances with no exceptions.
The 2010 Constitution, in Article 26(1) guarantees the right to life in the following terms:
Every person has a right to life
No one should be deprived intentionally of his life, save in execution of a sentence of a court in respect of a criminal offence of which he has been found guilty.

The only permissible limitations on the right to life are contained in Article 26 (3) of the Constitution, which provides that a person shall not be regarded as having been deprived of his life, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law.
It must be noted that the general omnibus derogation and limitation clause in Article 26 of the Kenyan Constitution does not apply to the right to life. Thus, any killing not within the context of Article 26 above will be unlawful and illegal.
The pertinent question is whether the limitation clauses allow intentional killing in the circumstances enumerated in Article 26. It is respectfully submitted that the killing permitted under Article 26 should have the objective of achieving one of the specified aims and the killing is merely a consequence of using an absolutely necessary amount of force in doing so.
The European Commission on Human Rights, in construing a similar provision, ruled that if disproportionate force is used and death results, then the Convention is violated, even if death was unintentional. While the use of force may sometimes be necessary, conduct resulting in death, whether intentional, negligent or accidental, should always have to be justified.

The duty of the state is to secure life
Though the Kenyan Constitution made no express provision on this matter, it can be implied from the spirit and some other provisions of the Constitution, that there is a duty on the State to act to secure life. extra judicialFurthermore, though article 26 of the Constitution, which guarantees the right to life, appears to have merely imposed a negative obligation on the State not to take life, when that article is read together with Article 29, it will be clear that the State has a duty to act to save life. Article 29 enacts that the security and welfare of the people shall be an obligation of government.
The European Commission on Human Rights, while interpreting a provision under the European Convention maintained that right to life imposes obligations on states to take appropriate steps to safeguard life. This will, for instance, entail taking appropriate steps to promote security and to prevent murder and other crimes threatening life.
The United Nations Human Rights Committee has equally noted that the right to life includes a duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life.
In conclusion, failures in the criminal justice system, and in internal and external police accountability mechanisms, encourage the commission of unlawful killings by police. This can however be corrected by implementing the doctrine of the rule of law, which ensures that governmental power is exercised in accordance with pre-determined rules as opposed to the exercise of a arbitrary power.

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