The High Court has issued orders barring plain-clothed police officers from covering or obscuring their faces during demonstrations.
Justice Bahati Mwamuye also barred the obscuring of the registration, identification or markings of any motor vehicle being used when in any way dealing with persons demonstrating.
“A conservatory order be and is hereby issued requiring the 5th respondent (Inspector General, NPS) to ensure that where plainclothes or non-uniformed Police Officers are deployed or utilized in any manner with regard to a person(s) who is or is planning on assembling, demonstrating, picketing, or petitioning: that police officers or officers shall not in any way hide or obscure their face so as to render them difficult to identify or unidentifiable,” Justice Mwamuye ruled.
In addition, the judge ordered the police to affix a nametag or an identifiable service number on their uniforms at all times when dealing with demonstrators and shall not remove or obscure the same.
“A conservatory order be and is hereby issued requiring the 5th respondent (IG) to ensure full compliance with Paragraph 10 of the sixth schedule to the National Police Service Act in terms of ensuring that all uniformed police officers or persons acting under the direction, control, or in support of the National Police Service shall at all times affix a nametag or an identifiable service number in a clearly visible part of their uniform when engaging with, providing security for, or in any way dealing with any person(s) who is or is planning on assembling, demonstrating, picketing, or petitioning; and they shall not remove or obscure the same,” the judge added.
This is after the Law Society of Kenya (LSK) moved to court seeking orders to bar the IG from deploying plainclothes or non-uniformed officers on persons exercising their peaceful right to protest.
The respondents in the case include, Martin Mbae Kithinji (police officer), Isaiah Ndumba Murangiri(police officer), Moses Mutayi Shikuku (In-Charge, Central Police station), Adamson Bungei (Nairobi County Commander), the Inspector General and the Attorney General.
Katiba Institute and the Kenya Commission for Human Rights are named as interested parties.
Under a certificate of urgency, lawyers Ochiel Dudley, Marc Chirchir, Ahmed Sigat and Abdul Basit argued that the respondents and their agents have been threatening the creation of an accountable National Police Service.
“Through actions that undermine articles 10 and 244 of the Constitution of Kenya, the respondents threaten the creation of a human rights state,” the lawyers told the court.
The court heard that by deploying plain-clothed police officers, the respondents’ action creates a chilling effect on exercising the right to demonstrate.
In addition, the lawyers submitted that the plain-clothed police officers, who are unidentified, cannot be held accountable for their actions.
“As a result, these plain-clothed police officers, without care in the world, use excessive force, abduct and even kill demonstrators. Yet, these plain-clothed police officers cannot be held accountable because they are unknown and unidentified,” Ochiel submitted
He added that unless the trend is urgently stopped, Kenyans risk death, inhumane and degrading treatment and a complete denial of their rights under the Constitution.
“Unless the petition and application are deemed urgent and the interim prayers requested granted, the respondents actions threaten our democracy and constitution and risk returning the country to the dark days when the police reigned supreme,” he added.
The court heard that the chilling effect on the exercise of the rights and the creation of a human centric society is real when plain clothed police officers welding guns occupy the streets and shoot at protestors with no mechanism of identifying them or holding them accountable.
In her affidavit, the LSK CEO Florence Muturi stated that Murangiri has been spotted abusing his powers as a police officer whole in civilian clothing and urgently needs to be restrained.
“Should this court fail to grant orders restraining the 2nd respondent in the application he shall continue to remain an imminent threat to innocent protestors or demonstators,” Muturi added.
The court also heard that Kithinji is the officer who manhandled activist Hanifa Farsafi on 18th June 2024 while unlawfully “arresting” her at a peaceful and unarmed protests at Archives in the CBD.
The matter shall be mentioned on 17th September 2024 for further directions.
