HUMAN RIGHTS AND POLICING

MANUAL FOR CORPORALS’ COURSE

2025
NPC MC
KIGANJO
TABLE OF CONTENTS
1.0 INTRODUCTION TO HUMAN RIGHTS ......................................................................
1
1.1 DEFINITIONS ..................................................................................................................... 1
1.2 CHARACTERISTICS OF HUMAN RIGHTS ............................................................................. 1
1.3 INSTRUMENTS OF HUMAN RIGHTS ....................................................................................
2
International: ......................................................................................................................
3
Regional: ............................................................................................................................
5
Domestic: ...........................................................................................................................
5
1.4 CATEGORIES OF HUMAN RIGHTS ......................................................................................
6
1.4.1 Political and Civil Rights ..........................................................................................
6
1.4.2 Economic, Social and Cultural Rights. .....................................................................
6
1.4.3 Group Rights. ............................................................................................................
7
2.0 LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS ...........................
8
2.1 LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS [ART 24(1), C.O.K, 2010].........
8
2.1.1 Factors to be Considered in Limitation .....................................................................
8
2.2 RIGHTS OF POLICE OFFICERS ............................................................................................
8
2.3 LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS IN RESPECT OF KDF AND NPS
[ART 24(5)] .............................................................................................................................
8
2.3.1 Limitation of Rights and Fundamental Freedoms of Police (Sec. 47 NPSA, 2011) 9
2.4 FUNDAMENTAL RIGHTS AND FREEDOMS THAT MAY NOT BE LIMITED (ART 25 C.O.K,
2010) ......................................................................................................................................
9
2.5 PURPOSES OF LIMITATIONS. ............................................................................................
10
3.0 TORTURE ........................................................................................................................
10
3.1 DEFINITIONS ...................................................................................................................
10
3.2 NO JUSTIFICATION FOR TORTURE. (PTA SEC 6) .............................................................. 12
3.3 ACTS CONSTITUTING TORTURE – SCHEDULE (SECTION 4) .............................................. 12
3.4 OFFENCES AND PUNISHMENTS ........................................................................................
13
4.0 ARREST AND DETENTION .........................................................................................
15
4.1 DEFINITION OF ARREST ...................................................................................................
15
4.1.1 Arrest Guidelines (CPC Sec 21) .............................................................................
15
4.2 RIGHTS OF ARRESTED PERSONS ART 49 .........................................................................
15
4.3 REMAND BY COURT (SECTION 15 OF THE SECURITY LAWS (AMENDMENT) ACT, 2014
I.R.O CPC 36A) .....................................................................................................................
16
4.4 DETENTION .....................................................................................................................
18
4.4.1 Rights of persons detained, held in custody or imprisoned. Art 51 ........................
18
4.5 ARREST AND DETENTION RULES (SEC 59 NPSA, 2011) .................................................
18
5.0 ADMINISTRATION OF JUSTICE ...............................................................................
20
5.1 DEFINITIONS ...................................................................................................................
20
5.2 ARTICLE 47 C.O.K, 2010 (FAIR ADMINISTRATIVE ACTION) .......................................
20
5.3 ARTICLE 48 C.O.K, 2010 (ACCESS TO JUSTICE) .............................................................. 20
5.4 THE FAIR ADMINISTRATIVE ACTION ACT, 2015 ............................................................. 20

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5.5 RIGHTS RELATING TO ADMINISTRATIVE ACTION OF JUSTICE............................................
21
5.6 FAIR HEARING ................................................................................................................
21
Article 50 constitution: Fair Hearing. ..............................................................................
21
5.7 RIGHTS OF VICTIMS ........................................................................................................
23
5.7.1 Victim Protection Act 2014 ....................................................................................
23
5.7.2 Rights of Victims. ...................................................................................................
23
6.0 USE OF FORCE AND FIREARM ................................................................................
25
6.1 BASIC PRINCIPLES ON THE USE OF FORCE AND FIREARMS (BPUFF) ..............................
25
6.2 USE OF FORCE AND FIREARM: SIXTH SCHEDULE NPSA 2011 .........................................
26
6.2.1 Conditions as To the Use of Force (A) ...................................................................
26
 6.2.2 Conditions as To the Use of Firearms (B) ..............................................................
28
6.2.3 Specific Responsibilities of Superiors (C) ..............................................................
29
6.2.4 Preventing Escape (D) ............................................................................................
30
6.3 SUMMARY .......................................................................................................................
30
7.0 ENFORCEMENT AND PROMOTION OF HUMAN RIGHTS ................................
31
7.1 INDIVIDUAL (ART 22 C.O.K, 2010) .................................................................................
31
7.2 NATIONAL POLICE SERVICE (ART 244 C.O.K, 2010) ......................................................
31
7.3 THE KENYA NATIONAL HUMAN RIGHTS AND EQUALITY COMMISSION (ART 59) ...........
31
7.4 SIGNIFICANCE OF HUMAN RIGHTS KNOWLEDGE TO POLICE OFFICERS ...........................
32
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1.0 INTRODUCTION TO HUMAN RIGHTS

1.1 Definitions
Human rights are such actions, treatments and claims that deserve or do not deserve a human
being. Human Rights are entitlements that all humans have by virtue of the fact that they are
human beings.

The United Nation Human Rights Commission defines human rights as the legal expression
of the essential rights that every person is entitled to as a human being. Basically human
rights are fundamental principles of justice and fairness that apply to all human beings, by
virtue of their humanity.

According to the Universal Declaration of Human Rights (1948), human rights are the rights
that all people have by virtue of being human beings.

The purpose of recognizing and protecting human rights and fundamental freedoms is to
preserve the dignity of individuals and communities and to promote social justice and the
realization of the potential of all human beings. These rights are therefore our protection
against people who might want to harm or hurt us. They are human constructs of moral
codes that exist in all societies on what is right or wrong, permissible or not permissible in
preserving human dignity for all people/s. They are also there to help us get along with each
other and live in peace.

1.2 Characteristics of Human Rights

1. Human Rights are universal: Everybody everywhere is entitled to human rights. Every
single human being is entitled to enjoy his/her human rights without distinction as to race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.

2. Human Rights are Inherent - Human rights do not have to be bought, earned or
inherited; they belong to people simply because they are human. We are all born free and
equal in dignity and rights. Human rights are inherent and do not require any secondary
qualification before they are claimed by one.

3. Human Rights focus on the dignity of the human beings: A human right must always
seek to protect and advance human dignity.

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4. Human Rights oblige States and State actors: States and their agencies (especially
those with powers of detention and search) are bound legally to not only promote and
protect human rights, but to also observe and respect them in the course of their duty.
5. Human Rights are legally protected: They are enshrined in legal
instruments/documents and can be enforced legally. A person can use the judicial system
to have their rights declared or protected against violation.

6. Human Rights are Inalienable (Cannot be waived or taken away except through
legal process). They can never be arbitrarily taken away or waived, unless through due
process of law. Any limitation of rights and fundamental freedoms therefore must be
within the law.

7. Human Rights are Indivisible (Equal and interdependent) No right is superior to

another; they are all equally important (although the right to life is considered the cardinal
right since once violated, it cannot be reversed). The rights and fundamental freedoms
also do depend on each other for their full actualization. When one right or fundamental
freedom is denied, all the rest get adversely affected.

8. Human Rights are Dynamic: Human rights go on expanding with socio-eco-cultural and
political developments within the State. Judges have to interpret laws in such ways as are
in tune with the changed social values.

9. Nationally and internationally guaranteed: They are found in national instruments e.g.
the C.O.K 2010 as well as international documents e.g. UN Charter. They are therefore
guaranteed and protected internationally.

1.3 Instruments of Human Rights

Human rights Instruments are documents containing standards agreements and guidelines
relating to human rights.

Charter is used for particularly formal and solemn instruments, examples are the charter of
the United Nations of 1945.

Treaty is an official, express written agreement that states use to legally bind themselves.
Protocols, agreements less formal than those entitled "treaty" or "convention".

Declarations: instruments where, parties do not intend to create binding obligations but
merely want to declare certain aspirations, declarations are not always legally binding

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Adoption: the formal act by which the form and content of a proposed treaty text are
established. The adoption of the text of a treaty takes place through the expression of the
consent of the states participating in the treaty-making process.
Accession: the act whereby a state accepts the offer or the opportunity to become a party to a
treaty already negotiated and signed by other states. It has the same legal effect as
ratification. Accession usually occurs after the treaty has entered into force.

Ratification: the international act whereby a state indicates its consent to be bound to a
treaty if the parties intended to show their consent by such an act.

Reservation: a declaration made by a state by which it purports to exclude or alter the legal
effect of certain provisions of the treaty in their application to that state.

Human rights instruments are in three levels namely:

International:
i) Charter of the United Nations (1945).
The goal of the United Nations Conference on International Organization was to fashion an
international body to promote peace and prevent future wars. The United Nations conference
resolved on a charter that was signed on 26 June 1945, and came into force on 24 October
1945.

ii) Universal Declaration of Human Rights (UDHR, 1948)

Adopted: 10 December 1948 at Paris. The declaration arose directly from the experience of
the WWII and represents the first global expression of rights to which all human beings are
inherently entitled. It proclaims a common standard of achievement for all peoples and all
nations, to the end that every individual and every organ of society, keeping the declaration
constantly in mind, shall strive by teaching and education to promote respect for the rights
and freedoms.

iii) International Covenant On Civil And Political Rights (ICCPR, 1966)

Adopted: December 16, 1966, in force: march 23, 1976. Kenya acceded in 23 march 1976
(ICCPR); It commits its parties to respect the civil and political rights of individuals. The
ICCPR is monitored by the human rights committee (a separate body to the human rights
council), which reviews regular reports of states parties on how the rights are being
implemented.

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 iv) International Covenant on Economic Social and Cultural rights (1966). In
accordance with the universal declaration of human rights, the ideal of free human beings
enjoying freedom from fear and want can only be achieved if conditions are created whereby
everyone may enjoy his economic, social and cultural rights, as well as his civil and political
rights.

Conventions

(a) Convention on the elimination of all forms of racial discrimination (CERD, 1969)
Effective: 4th January 1969, Signed: 7th march 1966. The convention commits its members to
the elimination of racial discrimination and the promotion of understanding among all races.
The convention is monitored by the committee on the elimination of racial discrimination
(CERD).

(b) Convention on the elimination of all forms of discrimination against women

(CEDAW, 1979)

Adopted: 18th December 1979, Came into force: 3 September 1981. Described as an
international bill of rights for women, the US is the only developed nation that has not ratified
the CEDAW. The convention defines discrimination against women. It establishes an agenda
of action for putting an end to sex-based discrimination: States must take measures to seek to
eliminate prejudices and customs based on the idea of the inferiority or the superiority of one
sex or on stereotyped role for men and women. Convention oversight is the task of the
committee on the elimination of discrimination against women.

(c) United Nations Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (1984)

Drafted: 10th December 1984, Adopted by the General Assembly of the United Nations on
10th December 1984 (resolution 39/46) The Convention entered into force on 26 June 1987,
Kenya ratified on 23 March 1997; Is an international human rights instrument, under the
review of the UN. Aims to prevent torture around the world. The Committee against
Torture (CAT) is a body of human rights experts that monitors implementation of the
convention by state parties

(d) Convention on the Rights of the Child (CRC)

Signed: 20th November 1989, Effective: 2th September 1990, Kenya ratified on 2 September
1990;A human rights treaty setting out the civil, political, economic, social, health and

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cultural rights of children. Nations that ratify this convention are bound to it by international
law.

Compliance is monitored by the United Nations Committee on the Rights of the Child.

(e) Convention on the Rights of Persons with Disabilities (UNCRPD)

Adopted: 13 December 2006, Effective: 3 may [Link] to protect the rights and dignity
of persons with disabilities. Parties to the convention are required to promote, protect, and
ensure the full enjoyment of human rights by persons with disabilities and ensure that they
enjoy full equality under the law. The convention is monitored by the Committee on the
Rights of Persons with Disabilities.

(f) International Convention On The Rights Of Minorities (1992)

The United Nations minorities declaration in its article 1 refers to minorities as based on
national or ethnic, cultural, religious and linguistic identity, and provides that states should
protect their existence. The United Nations' treaty-based human rights system includes legal
procedures through which members of minorities can seek protection of their rights. Six
major international human rights treaties that deal with civil and political rights; economic,
social, and cultural rights; racial discrimination; children's rights; women's rights; and torture,
respectively outline the modalities of dealing with minorities.

Regional:
(a) African Charter On Human And Peoples' Rights (ACHPR) (The Banjul
Charter) Kenya ratified on 23 January 1992 (African charter); Intended to promote and
protect human rights and basic freedoms in the African continent. The OAU adopted the
African Charter on

Human and People’s Rights in 1981 in Banjul, Gambia. The African charter reflects a
concern for protecting collective rights and also imposes duties on individual. Establishes the
African

Commission on Human and People’s Rights (ACHPR) charged with enforcing the African
Charter on Human and Peoples’ Rights.

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 (b) Arab charter on human rights (ACHR, 2008)
Adopted by the council of the league of Arabs states on 22 may 2004 it has been in force
since 15 march 2008. Affirms the principles contained in the UN charter, the UDHR, the
international covenants on human rights and the Cairo declaration on human rights in
Islam. Apparently, the charter deals with the rights of people (the Arab people) to
selfdetermination, to control their natural wealth and resources, to determine freely the form
of their political structure and to pursue freely their economic, social and cultural
development.

Domestic:
The Constitution (2010)
Children’s Act (2022)
Sexual offences Act (2006)
Refugees Act (2021)

1.4 Categories of Human Rights

The division of human rights into three generations was first proposed by Karel Vasak at the
International Institute of Human Rights in Strasbourg. His division follows the principles of
libertè, ègalitè and fraternitè of the French revolution. (Liberty/freedom, equality &
brotherhood). The distinction is based on how human rights were regarded in theoretical
terms. Human Rights are traditionally divided into three groups;

1.4.1 Political and Civil Rights

Civil and political rights also called first generation rights/classic/blue rights. They are
fundamentally civil and political in nature. First-generation human rights, often called "blue"
rights, deal essentially with liberty and participation in political life. These are
"libertyorientated" and their main purpose is to shield the individual from possible excess by
the state

i.e. limit state interference in the people’s lives.

Entails an obligation for the state to refrain from certain [Link] in terms of a duty
to achieve a given result (obligation of result). The state has an obligation to respect these
rights and must guarantee that people can effectively enjoy them. Are considered to be
expressed in very precise language imposing merely negative obligations which do not
require resources for their implementation and which therefore can be applied immediately.

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They were enshrined at the global level and given status in international law first by Articles
3 to 21 of the 1948 Universal Declaration of Human Rights and later in the 1966 International
Covenant on Civil and Political Rights. Civil and Political rights are set out in article 18-21 of
the UDHR (1948); codified in the ICCPR (1966) and Set out in constitution of Kenya articles
26-40.

First-generation rights include, among other things: the right to life; equality before the law;
freedom of speech; the right to a fair trial; freedom of religion, equality and freedom from
discrimination, freedom and security of the person, freedom of expression, labor relations,
and voting rights.

1.4.2 Economic, Social and Cultural Rights.

Also called second generation rights/red rights. These are "security-orientated" rights.
Second-generation human rights began to be recognized by governments after World War II.
These rights provide the conditions necessary for prosperity and wellbeing. Are related to
equality, oblige state to provide certain guarantees. They guarantee different members of the
citizenry equal conditions and treatment. Claims for positive intervention by state in order to
promote social justice. Described in terms of a duty to provide the means (obligation of
conduct). These rights impose upon the government the duty to respect and promote and
fulfill them, but this depends on the availability of resources.

Considered to be expressed in vague terms, imposing only positive obligations conditional on

the existence of resources and therefore involving a progressive realization. The duty is
imposed on the state because it controls its own resources. The duty of government is in the
realization of these positive rights.

Listed in article 22-28 of the UDHR (1948); Codified in the ICESCR (1966) art 6-15 and
Contained in articles 43-44 of the constitution of Kenya. Secondary rights include a right to
be employed in just and favorable condition, rights to food, housing, as well as social security
and unemployment benefits. The right to a reasonable standard of living, the right to
education; the right to health care; the right to freedom of cultural life.

1.4.3 Group Rights.

Also known as third generation rights, green rights, “solidarity rights” or “collective
rights”.These are rights that accrue to groups rather than individuals. They are linked
specifically to membership of a certain group Cover group. The third world countries have
especially agitated for these rights, which they see as essential for their overall development.

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Third-generation human rights are those rights that go beyond the mere civil and social, as
expressed in many progressive documents of international law, including the 1972Stockholm
Declaration of the United Nations Conference on the Human Environment, the 1992 Rio

Declaration on Environment and Development. Contained in constitution of Kenya art 53-57.

Some of these rights include: The rights of children, Persons with disabilities, youths,
Protection of minorities and marginalized peoples; older members of the society. Right to
selfdetermination, Right to economic and social development, Right to a healthy
environment, Right to natural resources, Right to communicate and communication rights,
Right to participation in cultural heritage, Rights to intergenerational equity and
sustainability.

NB: Categorization of human rights reflects an international consensus. Although human

rights have been classified in a number of different manners it is important to note that
International Human Rights Law stresses that all human rights are universal, indivisible and
interrelated (Vienna Declaration and Programme Of Action, 1993, para 5).
2.0 LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS

2.1 Limitation of Rights and Fundamental Freedoms [Art 24(1), C.o.K, 2010]
A right or fundamental freedom in the Bill of Rights shall not be limited except through
lawful means. Any such limitation must be only to the extent that is reasonable and
justifiable in an open and democratic society. Limitation should never violate the principles
of human dignity, equality and freedom.

2.1.1 Factors to be Considered in Limitation

a) The nature of the right or fundamental freedom; Is the particular right legally open
for limitation?

b) The importance of the purpose of the limitation; Does the need for the limitation
supersede the need to protect such a right?

c) The nature and extent of the limitation; How acceptable is the scope of the
limitation?
d) The need to ensure that the enjoyment of rights and fundamental freedoms by
any individual does not prejudice the rights and fundamental freedoms of others.

e) The relation between the limitation and its purpose and whether there are less
restrictive means to achieve the purpose.

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2.2 Rights of Police Officers
Subject to Section 47 NPSA, a police officer shall be entitled to all the rights set out in the
Constitution. [Sec. 46(1) NPSA, 2011]

2.3 Limitation of Rights and Fundamental Freedoms in Respect of KDF and NPS [art
24(5)]

In spite of factors elaborated in Article 24(1), members of KDF and NPS may have some of
these rights and fundamental freedoms may be limited by a provision in the legislation;

a. Right to Privacy; Art. 31

b. Freedom of association; Art. 36
c. Freedom of assembly, demonstration, picketing and petition; Art. 37
d. Labor relations; Art. 41
e. Economic and social rights; and Art. 43
f. Rights of arrested persons. Art. 49

2.3.1 Limitation of Rights and Fundamental Freedoms of Police (Sec. 47 NPSA, 2011)
1) Subject to Article 24, 25 and 35(access to information) of the Constitution, the rights and
fundamental freedoms of an officer of the Service may be limited for the purposes, in the
manner and to the extent set out by law.

2) A limitation of a right or fundamental freedom under this section shall relate to;
a) The right to privacy(art 31) to the extent of allowing;
i) A person, home or property to be searched; ii) Possessions to be seized; iii)
Information relating to a person’s family or private affairs to be required or revealed;
or

iv) The privacy of a person’s communications to be investigated;

b) The freedom of association(art 36) to the extent of limiting the right of officers of
the service from joining or participating in the activities of any kind of association
other than those authorized under NPSA act;

c) The right to assemble, demonstrate, picket and petition(art 37) public authorities
to the extent of ensuring discipline in the service; and

d) Right to fair labor relations(art 41) to the extent of prohibiting officers of the
service from joining and participating in the activities of a trade union and going on
strike.

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 e) The freedom of expression(art 33) to the extent of limiting the freedom to impart
information for officers of the service;

f) The freedom of the media(art 34);

g) The right to access to information(art 35) to the extent of protecting the service
from: Demands to furnish persons with information; and Publicizing information
affecting the nation;

2.4 Fundamental Rights and Freedoms that May Not be Limited (Art 25 C.o.K, 2010)
The constitution outlines four rights and fundamental freedoms which shall not be limited
under whatever circumstances. By their very nature, the four rights can never be open to
limitation.

1) Freedom from torture and cruel, inhuman or degrading treatment or punishment;

“Torture” means any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes of—

a) obtaining information or a confession from the person or from a third person;

b) punishing the person for an act which that person or a third person has committed or
is suspected of having committed;
c) intimidating or coercing the person or a third person; or
d) for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity:

Provided that torture does not include any pain or suffering arising from, inherent in or
incidental to lawful sanctions.

“Cruel, inhuman and degrading treatment or punishment” means a Deliberate and

aggravated treatment or punishment not amounting to torture, Inflicted by a person in
authority or the agent of the person in authority against a Person under his custody, causing
suffering, gross humiliation or debasement To the person. 2) Freedom from slavery or
servitude ;( Art. 30)

Servitude is the condition in which one lacks liberty especially to determine one’s course of
action or way of life.

Slavery: social practice of owning human beings as property, especially for use as forced
laborers.

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3) The right to a fair trial(art 50); and
4) The right to an order of habeas corpus (CPC389).

2.5 Purposes of Limitations.

Rights and fundamental freedoms shall be limited only for purposes of ensuring the;
a) Protection of classified information;
b) Maintenance and preservation of National Security;
c) Security and safety of officers of the service;
d) Independence and integrity of the service; and
Enjoyment of the rights and fundamental freedoms by any individual does not prejudice the
rights and fundamental freedoms of others.

3.0 TORTURE

3.1 Definitions
Torture (Sec 4 of The Prevention of Torture Act No. 12 of 2017)
Means any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes of—

a) Obtaining information or a confession from the person or from a third person;

b) Punishing the person for an act which that person or a third person has committed or
is suspected of having committed;

c) Intimidating or coercing the person or a third person; or

d) for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity: Provided that
torture does not include any pain or suffering arising from, inherent in or incidental to lawful
sanctions.

Cruel, Inhuman and Degrading Treatment or Punishment (Sec 2 PTA)

Includes a deliberate and aggravated treatment or punishment not amounting to torture,
inflicted by a public officer or a person acting on behalf of a public officer against a person
under their custody, causing suffering, gross humiliation or degradation to the person;

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NB:

i. Freedom and Security of the Person. Art 29

 Every person has the right to freedom and security of the person, which includes the right
not to be;

a) Deprived of freedom arbitrarily or without just cause;

b) Detained without trial, except during a state of emergency, in which case the
detention is subject to article 58;

c) Subjected to any form of violence from either public or private sources;

d) Subjected to torture in any manner, whether physical or psychological;
e) Subjected to corporal punishment; or
f) Treated or punished in a cruel, inhuman or degrading manner.

ii. The Prevention of Torture Act No. 12 of 2017.

An Act of Parliament to;

a) Give effect to Article 25(a) and 29(d) of the Constitution and to the principles
of the Convention Against Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT);

b) To provide for the prevention, prohibition and punishment of acts of torture
and cruel, inhuman or degrading treatment or punishment;

c) Reparations to victims of torture and cruel, inhuman or degrading treatment or

punishment; and for connected purposes.

3.2 No Justification for Torture. (PTA sec 6)

 No exceptional circumstances, including- a state of war or a threat of war; internal
political instability; or a public emergency, may be invoked as justification of torture or
cruel, inhuman or degrading treatment or punishment.

 An order from a superior officer or a public authority may not be invoked as justification
for torture or cruel, inhuman or degrading treatment or punishment.

 A person shall not be held liable to disciplinary action or criminal prosecution only on
account of refusing to obey an order from a superior officer or public authority to commit,
aid or abet in the torture or cruel, inhuman or degrading treatment or punishment or an
offence under the Act.

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3.3 Acts Constituting Torture – Schedule (Section 4) Acts
constituting torture include but are not limited to-

Physical torture

Which includes—

1. Systematic beating, head banging, punching, kicking, striking with truncheons, rifle butts,
jumping on the stomach;

2. Gunshots;
3. Food deprivation or forcible feeding with spoiled food, animal or human excreta or other
food not normally eaten by a victim;

4. Electric shocks;
5. Cigarette burning, burning by electrical heated rods, hot oil, acid, by rubbing of pepper
or other spices or acids or other chemical substances on mucous membranes;

6. The submersion of a victim's head in water or water polluted with excrement, urine,
vomit or blood;

7. Being tied or forced to assume a fixed and stressful body position;

8. Rape and sexual abuse, including the insertion of foreign bodies into the sexual organs or
rectum or electrical torture of the genitals;

9. Mutilation including amputation of parts of the body such as the genitalia, ears and
tongue;
10. Dental torture or forced extraction of the teeth;
11. Harmful exposure to elements such as sunlight and extreme cold;
12. Administration of drugs to induce confession or reduce mental competence;
13. The use of drugs to induce extreme pain or certain symptoms of diseases;
14. The use of plastic bags and other materials placed over a victim's head with the intention
to asphyxiate.

15. Other forms of deliberate and aggravated cruel, inhuman or degrading pharmacological
treatment or punishment; or

Mental or psychological torture. Including;

1. Blindfolding or placing a material or hood over a victim's head;

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 2. Threatening a victim or a victim's family with bodily harm, execution or other
wrongful acts;

3. Confining a victim incommunicado, in a secret detention place or other form of

detention;

4. Confining a victim in a solitary cell or a cell put up in public place;

5. Confining a victim in a solitary cell against their will without regard to their
security;

6. Prolonged interrogation of a victim so as to deny the victim normal length of

sleep or rest;

7. Maltreating a member of a victim's family;

8. Witnessing of torture sessions by a victim's family or relative;
9. Denial of sleep or rest;
10. Simulation of killing;
11. Subjecting a victim to noise that is
 Intense;
 Repetitive; or
 Prolonged
12. Shame infliction such as stripping a victim naked, parading a victim in a public
place, shaving a victim's head or putting a mark on the victim's body against the
victim's will; or

13. Any other act that degrades a victim.

3.4 Offences and Punishments

Sec.5 Offence of torture
1. Any person who tortures another person commits an offence and shall be liable, on
conviction, to imprisonment for a term not exceeding twenty five years.

2. If as a result of torture referred to under subsection (1) the victim dies, the person is
liable, on conviction, to imprisonment for life.

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[Link] of cruel, inhuman or degrading treatment or punishment.

 A person who —
a) commits or induces another person to commit cruel, inhuman or degrading
treatment or punishment; or

b) cooperates in the execution of cruel, inhuman and degrading treatment or

punishment,

commits an offence and is liable, on conviction, to a fine not exceeding one million shillings
or imprisonment for a term not exceeding fifteen years or both.

Sec. 8. Aiding and Abetting

A person who attempts, aids, abets, counsels, procures or conspires with another person to
commit an offence under this Act commits an offence and shall be liable, on conviction, to a
fine not exceeding one million shillings or to imprisonment for a term not exceeding fifteen
years or both.

Sec. 9. Offence of using information obtained through torture

(1) Any information, confession or admission obtained from a person by means of torture or
cruel, inhuman or degrading treatment or punishment is inadmissible evidence in any
proceedings

(2) A person who knowingly uses information which is obtained through torture or cruel,
inhuman or degrading treatment or punishment commits an offence and is liable, on
conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for
a term not exceeding seven years or to both.

(3) Despite subsections (1) and (2), any information, confession or admission obtained by
means of torture or cruel, inhuman or degrading treatment may be admitted against a
person accused of torture or cruel, inhuman or degrading treatment as evidence that the
information, confession or admission was obtained by torture or cruel, inhuman or
degrading treatment.

4.0 ARREST AND DETENTION

4.1 Definition of Arrest

“Arrest” means the act of apprehending a person for suspected commission of an offence
or by the action of legal authority; [Sec 2 NPSA]

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4.1.1 Arrest Guidelines (CPC Sec 21)
(1) In making an arrest the police officer or other person making it shall actually touch or
confine the body of the person to be arrested, unless there be a submission to custody
by word or action.

(2) If a person forcibly resists the endeavor to arrest him, or attempts to evade the arrest,
the police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section shall justify the use of greater force than was
reasonable in the particular circumstances in which it was employed or was
necessary for the apprehension of the offender.

4.2 Rights of Arrested Persons Art 49

1) An arrested person has the right;
a. To be informed promptly, in language that the person understands, of;
(i) The reason for the arrest;
(ii) The right to remain silent; and
(iii) The consequences of not remaining silent;
b. To remain silent;
c. To communicate with an advocate, and other persons whose assistance is
necessary;
d. Not to be compelled to make any confession or admission that could be used in
evidence against the person;

“Confession” means any words or conduct, or combination of words and conduct, which has
the effect of admitting in terms either an offence or substantially all the facts which constitute
an offence.

“Admission” a statement, oral or documentary, which suggests any inference as to a fact in

issue or relevant fact, and which is made by any of the persons and in the circumstances
hereinafter mentioned.

e. To be held separately from persons who are serving a sentence;

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 f. To be brought before a court as soon as reasonably possible, but not later
than;
(i) 24 hours after being arrested; or
(ii) if the 24 hours ends outside ordinary court hours, or on a day that is
not an ordinary court day, the end of the next court day;

g. At the first court appearance, to be charged or informed of the reason for the
detention continuing, or to be released; and

h. To be released on bond or bail, on reasonable conditions, pending a charge or trial,

unless there are compelling reasons not to be released.

2) A person shall not be remanded in custody for an offence if the offence is punishable by a
fine only or by imprisonment for not more than six months.

4.3 Remand by Court (Section 15 of The Security Laws (Amendment) Act, 2014 i.r.o
CPC 36A)

1) Pursuant to article 49(1) (f) and (g) of the constitution, a police officer shall present a
person who has been arrested in court within 24 hours after being arrested.

2) Notwithstanding subsection (1), if a police officer has reasonable grounds to believe that
the detention of a person arrested beyond the 24 hour period is necessary, the police
officer shall-

a) Produce the suspect before a court; and

b) Apply in writing to the court for an extension of time for holding the suspect in
custody.

3) An application under subsection (2) shall be supported by an affidavit sworn by the

police officer and shall specify-

a) The nature of the offence for which the suspect has been arrested;
b) The general nature of the evidence on which the suspect has been arrested;
c) The inquiries that have been made by police in relation to the offence and any
further inquiries proposed to be made by the police; and

d) The reasons necessitating the continued holding of the suspect in custody

4) In determining an application under subsection (2), the court shall consider any objection
that the suspect may have in relation to the application and may-

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 a) Release the suspect unconditionally;
b) Release the suspect subject to such conditions as the court may impose to
ensure that suspect-;

i. does not, while on release, commit an offence, interfere with witness or

the investigations in relation to the offence for which the suspect has been
arrested;
ii. is available for the purpose of facilitating the conduct of investigations
and the preparation of any report to be submitted to the court dealing with
the matter in respect of which the suspect stands accused; and

iii. appears at such a time and place as the court may specify for the purpose
of conducting preliminary proceedings or the trial or for the purpose of
assisting the police with their inquiries; or

c) Having regard to the circumstances specified under subsection (5), make an

order for the remand of the suspect in custody.

5) A court shall not make an order for the remand in custody of a suspect under subsection
(5)(c) unless—
a) there are compelling reasons for believing that the suspect shall not appear for
trial, may interfere with witnesses or the conduct of investigations, or commit
an offence while on release;

b) it is necessary to keep the suspect in custody for his protection, or, where the
suspect is a minor, for his welfare;

c) the suspect is serving a custodial sentence; or

d) the suspect, having been arrested in relation to the commission of an offence, has
breached a condition for his release.

6) The court may, for the purpose of ensuring the attendance of a suspect under subsection
(4)(b)(ii) or (iii), require the suspect—
a) to execute a bond for such reasonable amount as the court considers appropriate in
the circumstances; and

b) to provide one or more suitable sureties for the bond.

7) Where a court makes an order for the remand of a suspect under subsection (4) (c), the
period of remand shall not exceed thirty days.

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8) A police officer who detains a suspect in respect of whom an order has been issued under
subsection (4)(c) may, at any time before the expiry of the period of remand specified by
the court, apply to the Court for an extension of that period.

9) The court shall not make an order for the extension of the time for remand under
subsection (8) unless it is satisfied that having regard to the circumstances for which an
order was issued under subsection (4) (c), it is necessary to grant the order.

10) Where the court grants an extension under subsection (9), such period shall not, together
with the period for which the suspect was first remanded in custody, exceed ninety days.

4.4 Detention

4.4.1 Rights of persons detained, held in custody or imprisoned. Art 51

1) A person who is detained, held in custody or imprisoned under the law retains all the
rights and fundamental freedoms in the Bill of Rights, except to the extent that any
particular right or a fundamental freedom is clearly incompatible with the fact that the
person is detained, held in custody or imprisoned.

2) A person who is detained or held in custody is entitled to petition for an order of habeas
corpus. The High Court may whenever it thinks fit direct—

a) That any person within the limits of Kenya be brought up before the court to be
dealt with according to law;

b) That any person illegally or improperly detained in public or private custody within
those limits be set at liberty;

c) That any prisoner detained in a prison situated within those limits be brought before
the court to be there examined as a witness in any matter pending or to be inquired
into in that court;

d) That any prisoner so detained be brought before a court martial or commissioners

acting under the authority of a commission from the President for trial to be examined
touching any matter pending before the court martial or commissioners respectively;

e) That any prisoner within those limits be removed from one custody to another for
the purpose of trial; and

f) That the body of a defendant within those limits be brought in on a return of cepi
corpus to a writ of attachment.(CPC 389)

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4.5 Arrest and Detention Rules (Sec 59 NPSA, 2011)
An arrest by a police officer, whether with or without a warrant, shall be subject to the rules
contained in the 5th Schedule with respect to arrest and detention.

1) In the performance of the functions and exercise of the powers of arrest and detention set
out in the Constitution and NPSA or any other law, a police officer shall carry out an
arrest and detention only as provided for in law.

2) A police officer shall accord an arrested or detained person all the rights set out under
Articles 49, 50 and 51 of the Constitution.

3) Force shall only be used in accordance with the 6th Schedule.

4) Every police station shall have a lock-up facility for detaining arrested persons.
5) A lock-up facility shall have;
a. Hygienic conditions conducive for human habitation;
b. Adequate light, toilet and washing facilities and outdoor area;
c. Men and women will be kept separately;
d. Juveniles and children will be kept separately from adults; and
e. Police detainees will be kept separately from convicted prisoners.
6) A police officer shall only carry a firearm into a lock-up in accordance with the law.
7) A detained person shall be entitled to enjoy all the rights that do not relate to the
restriction of liberty.

8) A police officer in charge of a police station or other place of detention shall;

a. Maintain a register into which the following particulars in respect of detained
persons shall be entered; i) Name; ii) Reasons for the arrest and detention; iii)
Date and time of the arrest and detention; iv) Date and time of first appearance
before a court; v) Identity of the arresting officer; vi) Date and time for
interrogations and identity of interrogators; vii) Date and time of any transfer
of the detainee to another place of detention.

b. Appoint an officer who shall be responsible for the detainees’ welfare and for
updating the register.

9) A detained person shall have the right to–

a. Communicate with and receive visits of members of the family subject only to
reasonable conditions and restrictions (when exceptional needs of the
investigation so require) which shall be spelt out in the Standing Orders subject to
the approval from the Ministry;

b. Inform family members of the arrest and detention and place of detention;

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 c. Access to doctors and general medical assistance when required; and
d. Lodge complaints against ill-treatment and the right to compensation, which shall
be investigated by the IPOA, but in any event never by officers from the
respective police station.

10) No detained person shall be held in any other place except a designated lock-up facility.
11) A lock-up facility shall be open for inspection, including unannounced visits by both the
IPOA and the Cabinet Secretary or their representatives.

12) In the case of unannounced visits; officers responsible for the facility shall cooperate fully
with the persons making the visit; Recommendations may be made for improvement,
which shall be binding upon the Police and the detained person shall be entitled to
communicate freely and confidentially with persons making the visit.

13) Whenever a detained person dies in custody, the officer in charge shall notify the IPOA
and any other body required by law to be so notified for purposes of investigations.

14) A police officer who contravenes these provisions shall be personally guilty of a
disciplinary offence and may be tried for a criminal offence.

5.0 ADMINISTRATION OF JUSTICE

5.1 Definitions
"Administrative action" includes- the powers, functions and duties exercised by authorities
or quasi-judicial tribunals; or any act, omission or decision of any person, body or authority
that affects the legal rights or interests of any person to whom such action relates;

"Empowering provision" means a law, a rule of common law, customary law, or an

agreement, instrument or other document in terms of which an administrative action is taken
or purportedly taken;

5.2 Article 47 C.o.K, 2010 (Fair Administrative Action)

(1) Every person has the right to administrative action that is expeditious, efficient,
lawful, reasonable and procedurally fair.

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 (2) If a right or fundamental freedom of a person has been or is likely to be adversely
affected by administrative action, the person has the right to be given written reasons
for the action.

5.3 Article 48 C.o.K, 2010 (Access to justice)

The State shall ensure access to justice for all persons and, if any fee is required, it shall be
reasonable and shall not impede access to justice.

5.4 The Fair Administrative Action Act, 2015

An act of parliament to give effect to Article 47 of the constitution, and for connected
purposes. This Act applies to all state and non-state agencies, including any person-

(a) Exercising administrative authority;

(b) Performing a judicial or quasi-judicial function under the Constitution or any
written law; or

(c) Whose action, omission or decision affects the legal rights or interests of any
person to whom such action, omission or decision relates.(sec 3)

5.5 Rights relating to administrative action of justice.

Every person has the right to;

1) Administrative action which is expeditious, efficient, lawful, reasonable and

procedurally fair.

2) Prior and adequate notice of the nature and reasons (statement of reason) for the
proposed administrative action;

3) Attend proceedings, in person or in the company of an expert of his choice;

4) Be heard and to make representations in that regard; 5) Legal representation.

6) Be supplied with Information, materials and evidence to be relied upon in making

the decision or taking the administrative action or necessary to facilitate his or her
application for an appeal or review;

7) Cross-examine persons who give adverse evidence against him; and

8) Request for an adjournment of the proceedings, where necessary to ensure a fair
hearing.

9) Review or appeal against an administrative action or decision.

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5.6 Fair Hearing

Article 50 constitution: Fair Hearing.

(1) Every person has the right to have any dispute that can be resolved by the application
of law decided in a fair and public hearing before a court or, if appropriate, another
independent and impartial tribunal or body.

(2) Every accused person has the right to a fair trial, which includes the right— (a) to be
presumed innocent until the contrary is proved;

(b) to be informed of the charge, with sufficient detail to answer it;

(c) to have adequate time and facilities to prepare a defence;
(d) to a public trial before a court established under this Constitution;
(e) to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried, unless the conduct of the accused person
makes it impossible for the trial to proceed;

(g) to choose, and be represented by, an advocate, and to be informed of this right
promptly;

(h) to have an advocate assigned to the accused person by the State and at State
expense, if substantial injustice would otherwise result, and to be informed of
this right promptly;

(i) to remain silent, and not to testify during the proceedings;

(j) to be informed in advance of the evidence the prosecution intends to rely on,
and to have reasonable access to that evidence;

(k) to adduce and challenge evidence;

(l) to refuse to give self-incriminating evidence;
(m)to have the assistance of an interpreter without payment if the accused person
cannot understand the language used at the trial;

(n) not to be convicted for an act or omission that at the time it was committed or
omitted was not—

i. an offence in Kenya; or
ii. a crime under international law;
(o) not to be tried for an offence in respect of an act or omission for which the
accused person has previously been either acquitted or convicted;

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 (p) to the benefit of the least severeof the prescribed punishments for an offence,
if the prescribed punishment for the offence has been changed between the
time that the offence was committed and the time of sentencing; and

(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed
by law.

(3) If this Article requires information to be given to a person, the information shall be
given in language that the person understands.

(4) An accused person—

(a) charged with an offence, other than an offence that the court may try by summary
procedures, is entitled during the trial to a copy of the record of the proceedings of
the trial on request; and

(b) has the right to a copy of the record of the proceedings within a reasonable period
after they are concluded, in return for a reasonable fee as prescribed by law.

5.7 Rights of Victims

5.7.1 Victim Protection Act 2014 An

Act of Parliament to

• Give effect to Article 50 (9) of the Constitution;

• Provide for protection of victims of crime and abuse of power,  Provide victims
with better information and support services.

• Provide for reparation and compensation to victims;

• Provide special protection for vulnerable victims, and for connected purposes.
"Victim" means any natural person who suffers injury, loss or damage as a
consequence of an offence;

"victim impact statement” means a statement by the victim, or where incapacitated, the
victim's representative, on the psychological, emotional, physical, economic or social impact
of the offence committed against the victim and includes any recording, summary, transcript
or copy thereof;

5.7.2 Rights of Victims.

1) Right to privacy and confidentiality: A victim has a right to privacy —from the
media, whether print, electronic or other types; from unreasonable intrusion from
health professionals; of confidentiality of their communication with victim support

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 service providers; or from any other person. Where a victim requests for
confidentiality, the head of law enforcement agency investigating the offence shall
ensure that the residential address, telephone number, cell phone number, email, fax
and place of employment of the victim and members of the victims family are not
disclosed by the agency except to the extent required —by law, or for the purpose of
law enforcement or prosecution or other legal proceedings; or to ensure the safety and
security of any person.

2) Rights during the trial process: A victim has a right to —

a. be present at their trial either in person or through a representative of choice;
b. have the trial begin and conclude without unreasonable delay;
c. give their views in any plea bargaining;
d. have any dispute that can be resolved by the application of law decided in a
fair hearing before a competent authority or, where appropriate, another
independent and impartial tribunal or body established by law;

e. be informed in advance of the evidence the prosecution and defence intends

to rely on, and to have reasonable access to that evidence;
f. have the assistance of an interpreter provided by the State where the victim
cannot understand the language used at the trial; and

g. be informed of the charge which the offender is facing in sufficient details.

3) Right to protection: A victim has a right to—
a. be free from intimidation, harassment, fear, tampering, bribery, corruption and
abuse;

b. have their safety and that of their family considered in determining the
conditions of bail and release of the offender; and

c. Have their property protected.

4) Victim impact statements: A victim has a right to present a victim impact statement
in all cases where the court is to consider victim protection and welfare.

5) Right to choose whether or not to participate in restorative justice: A victim has a

right to restorative justice. Any agreement for restoration or other redress agreed
between the victim and the offender shall be recorded and enforced as an order of the
Court and may be enforced as a decree of the Court.

6) Right to prompt release of victim’s property held as exhibit: Where a law

enforcement agency is in possession of any property of a victim, the head of the law
enforcement agency shall, where the Agency is satisfied that the property is no longer

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 needed as evidence for an investigation or prosecution, ensure that the property is
returned to the victim promptly.

7) Rights of vulnerable victims: A court or competent authority may, on its own

motion or at the request of the prosecution or the victim officer declare a victim a
vulnerable victim.

8) Rights of a child victim: Where it appears to any police officer or the Director of
Public Prosecutions or any public officer presiding in a case where there is a
vulnerable child victim, and it appears that it would not be prudent to place the victim
with the parents, guardians, or care-givers, the child victim shall be committed to a
place of safety until the court makes a decision in relation to the matter in accordance
with the

Children’s Act.
9) Right to information: A victim has the right to information under Article 35 of the
Constitution, victim protection Act or any other written law. The information shall be
such information as is necessary for the realization by the victim of their rights.

10) Right to submit information: A victim has a right to submit any information for
consideration to the —
a. Police or prosecution- on a decision whether or not to lay a charge, or to
appeal or withdrawal;

b. Court- during plea bargaining, bail hearing and sentencing;

c. Advisory committee on power of mercy-on the release or pardon of a convict.
11) Right to compensation: A victim has a right to restitution or compensation from the
offender.

6.0 USE OF FORCE AND FIREARM (BPUFF

1990, NPSA 2011, SSO 47)

6.1 Basic Principles on the Use of Force and Firearms (BPUFF)

This instrument aims to offer authoritative guidance to “member states in their task of
ensuring and promoting the proper role of law enforcement officials”. It was adopted by the

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Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, held in
Havana, Cuba, from 27 August to 7 September 1990. It outlines the following principles:

General Provisions.
1. Apply non-violent means before resorting to the use of force and firearms.
2. Exercise restraint in such use and act in proportion to the seriousness of the offence
and the legitimate objective to be achieved;

3. Minimize damage and injury, and respect and preserve human life;
4. Render Assistance and medical aid to any injured or affected persons at the earliest
possible moment;

5. Notify Relatives or close friends of the injured or affected person at the earliest
possible moment.

6. Report incidences promptly to superiors where injury or death is caused by the use
of force and firearms.

7. Arbitrary or abusive use of force and firearms is criminalized under law.

8. Intentional lethal use of firearms may only be made when strictly unavoidable in order
to protect life.

9. Exceptional circumstances such as internal political instability or any other public

emergency may not be invoked to justify any departure from these basic principles.

Procedure before Using Firearm

1. Police officers shall identify themselves as such and
2. Give a clear warning of their intent to use firearms,
3. Allow sufficient time for the warning to be observed, NB: Unless to do so would

• Unduly place the officers at risk or

• Would create a risk of death or serious harm to other persons, or
• Would be clearly inappropriate or pointless in the circumstances of the incident.

Power to Use Firearms (Sec 61 NPSA)

1) Subject to subsection (2), a police officer shall perform the functions and exercise the
powers conferred by the Constitution and Service Act by use of non-violent means.

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 2) Despite subsection (1), a police officer may use force and firearms in accordance with
the rules on the use of force and firearms contained in the Sixth Schedule.

6.2 Use of Force and Firearm: Sixth Schedule NPSA 2011

6.2.1 Conditions as To the Use of Force (A)

1) Restriction on the Use of Force: A police officer shall always attempt to use
nonviolent means first and force may only employed when non-violent means are
ineffective or without any promise of achieving the intended result. SSO 47(3). 2) The
force used shall be proportional to the

• Objective to be achieved,
• Seriousness of the offence, and the
• Resistance of the person against whom it is used, and
• Only to the extent necessary while adhering to the provisions of the law and
the standing orders. SSO 47(4)

3) Injuries: When the use of force results in injuries –

a) the police officers present shall provide medical assistance immediately and
unless there are good reasons, failing to do so shall be a criminal offence; and

b) Shall notify relatives or close friends of the injured or affected persons. SSO
47(5)
4) Requirement to report: A police officer who uses any form of force shall
immediately, report to the officers’ superior explaining the circumstances that
necessitated the use of force and the supervisor shall judge the rightfulness and decide
on the next step, subject to these regulations. SSO 47(6)

5) Death, Serious Injuries and other grave Consequences: Any use of force that leads
to death, serious injury and other grave consequences shall be reported immediately
by the Officer in Charge to another direct superior of the person who caused the death
or injury, to the IPOA who shall investigate the case. SSO 47(7)

6) Authority to investigate. The Inspector-General shall not be precluded by virtue of

paragraph (5) from conducting investigations into the matter. SSO 47(8)

7) Reporting to Independent Policing Oversight Authority. A police officer who

makes a report to the IPOA in accordance with paragraph (5) shall; a) Secure the
scene of the act for purposes of investigations; and

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 b) Notify the next of kin, their relative or friend of the death or injury as soon as
reasonably practical. SSO 47(9)

8) Failing to Report. It shall be a disciplinary offence for a police officer to fail to

report in accordance with these regulations. SSO 47(10)

9) Preservation of Evidence. An officer shall not tamper or otherwise damage any

evidence from the scene of the act. Any weapon used under circumstances set out in
this Order shall be immediately secured and not cleaned or oiled in anyway. SSO
47(11)

10) Name Tag. A Police officer in uniform shall at all-time affix a nametag or identifiable
Service number in a clearly visible part of the uniform as provided in the Dress Code
Regulation Order. 12.

11) Following the orders of a superior is no excuse for unlawful use of force.
12) Lawful use of force. Lawful use of force may be applied –
a) to protect the officer or others from what is reasonably believed to be a threat of death
or serious bodily harm;

b) to protect life and property;

c) to prevent a person who attempts to rescue or rescues a person charged with a felony
from escaping lawful custody; or

d) to suppress or disperse a riotous mob committing or attempting to commit serious

offences against life or property. SSO 47 para 1

6.2.2 Conditions as To the Use of Firearms (B)

1) Purpose of using firearms. Firearms may only be used when less extreme means are
inadequate and for the following purposes –

(1) Saving or protecting the life of the officer or other person; and
(2) In self-defense or in defense of other person against imminent threat of life or
serious injury.

(3) protection of life and property;

(4) preventing a person charged with a felony from escaping lawful custody;
(5) preventing a person who attempts to rescue or rescues a person charged
with a felony from escaping lawful custody.(SSO CAP 47 para 13)

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2) Exceptions to Using Firearms without Prior Warning. An officer intending to use
firearms shall identify themselves and give clear warning of their intention to use
firearms, with sufficient time for the warning to be observed, except;

(1) Where doing so would place the officer or other person at risk of death or serious
harm; or

(2) If it would be clearly inappropriate or pointless in the circumstances.14

3) Restriction on the Use of Firearms. A police officer shall make every effort to avoid the
use of firearms, especially against children. 15..

4) Any use of firearm, even if there’s no injury, shall immediately be reported to the
officer’s superior.

5) Any use of fire arms that leads to death, serious injury and other grave consequences shall
be reported by the officer in charge or another direct superior of the person who caused
the death or injury, to the IPOA who shall investigate the case.

6) The Inspector-General is not precluded by virtue of paragraph (5) from conducting

investigations into the matter.

7) A police officer who makes a report to the IPOA in accordance with paragraph (5) shall;
a. Secure the scene of the act for purposes of investigations; and
b. Notify the next of kin, their relative or friend of the death or injury as soon as
reasonably practical.

8) Responsibilities for care and maintenance. SSO 17.

(1) When a weapon has been fired during operational duty, whether a person has been
injured or not, it shall be immediately secured and not cleaned or oiled or in any
way interfered with.

(2) The weapon referred to in paragraph(1) shall be protected against any alteration,
damage or dis-assembly and stored in that condition until any Internal Affairs
Unit
or Independent Policing Oversight Authority investigation into the matter has
been completed.

9) Firearms shall not be discharged when it is likely to injure an innocent person. SSO 47
(1(2)).

10) Regulations to be made on Firearms. 16. The Cabinet Secretary in consultation with the
Inspector-General shall make further regulations on the use of firearms which shall
include regulations—

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 (a) that specify the circumstances under which police may carry firearms and the type of
firearms and ammunition permitted;

(b) that prohibit firearms and ammunition that cause unwarranted injury or present
unwarranted risk;

(c) to regulate the control, storage and issuing of firearms, including procedures that
ensure that officers are accountable for the weapons and ammunition issued to them;

(d) for the selection, training and testing of officers authorized to carry firearms including
techniques that could diffuse tension and reduce the likelihood of the need to use
force in order to ensure that firearms are used appropriately and with the least risk of
causing unnecessary harm;

(e) to provide for testing of officers carrying fire arms at regular intervals, but at least
once a year;

(f) to provide for consequences of failing the test referred to under paragraph (d) and (e)
which shall include that failing to pass the test shall result in losing the right to carry
fire arms until the officer does pass the test; and

(g) Provide for a reporting system whenever officials use firearms in the performance of
their duty.

6.2.3 Specific Responsibilities of Superiors (C)

1) Superior officers should do everything in their power to prevent unlawful use of force
or firearms, and when such unlawful use of fire arms does occur, they should report this
immediately to the IPOA and to the Inspector-General.

2) Refusing to carry out orders that include unlawful use of force should not be penalized
and should not be a disciplinary offence.

3) Giving an order that would lead to the unlawful use of force is a disciplinary offence and
may amount to a criminal offence.

4) The station commander, or any other relevant direct superior, shall, immediately after the
death or serious injury of a person who at the time of his death or injury,
i. was in police custody or
ii. under the control of the Police or

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 iii. in any way the death or serious injury was the result of police action or
inaction which includes anyone who may have been injured or killed
being a bystander during a police operation,

a. Take all steps to secure evidence which may be relevant to that death;
b. Immediately report the case to the IPOA, using the means of communication
that guarantee there will be the least delay, and confirm this in writing no later
than within 24 hours after the incident;

c. Supply the IPOA with evidence of and all other facts relevant to the matter,
including, if available, the names and contact details of all persons who may be
able to assist the IPOA should it decide to conduct an investigation;

d. Non-compliance with the above shall be an offence.

6.2.4 Preventing Escape (D)

1) A police officer may use instruments of restraint (e.g. handcuffs; arms restraints, ankle
straps/legs restraints, belts, lanyards etc.) to;

a) To prevent the escape of a detainee or prisoner; and

b) To prevent the detainee from self-injury or injuring others or damaging property.
2) An instrument of restraint may;
a) Not be applied for longer than necessary to secure the purpose for which it is used;
b) Not be used as a punishment; and
c) Shall be removed immediately after the purpose for which it is used is achieved.

6.3 Summary
In summary, the following need to be the guiding principles in the use of force and firearms
“PLAN”.
1. Proportionality: Use force and firearms only in proportion to the seriousness of the
offence and legitimate objective to be achieved.

2. Legality: Use of force and firearm should only be used in accordance with the law.
3. Accountability: Police will be held accountable for all their actions. Accurate details
of all instances of injury or death from use of force or firearm must be recorded and
reported.

4. Necessity: Use force or firearm only if other means remain ineffective or without any
promise of achieving the intended result.

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7.0 ENFORCEMENT AND PROMOTION OF HUMAN RIGHTS

7.1 Individual (Art 22 C.o.K, 2010)

Every person has the right to institute court proceedings claiming that a right or
fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is
threatened. In addition to a person acting in their own interest, court proceedings may be
instituted by;

a) A person acting on behalf of another person who cannot act in their own name;
b) A person acting as a member of, or in the interest of, a group or class of persons;
c) A person acting in the public interest; or
d) Association acting in the interest of one or more of its members.

7.2 National Police Service (Art 244 C.o.K, 2010)

The National Police Service shall;
a) Comply with constitutional standards of human rights and fundamental freedoms;
b) Train staff to the highest possible standards of competence and integrity and to respect
human rights and fundamental freedoms and dignity;

c) Advocacy Role: Sensitize fellow officers and the public on rights related to the
administration of justice.

d) Leadership Role: Inspire other officers to uphold human rights by example. This builds a
culture of respect for human rights within the organization.

e) Investigative Role: Conduct impartial investigations on all complaints of violations

promptly with due regard to the rights of all parties involved.

f) Supervisory Role: conducting regular checks and inspections as required by standing

orders, a police manager can control the incidence of violations of rights at a police
station.

7.3 The Kenya National Human Rights and Equality Commission (Art 59)
The functions of the Commission are to;
a) Promote respect for human rights and develop a culture of human rights in the Republic;

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b) Promote gender equality and equity generally and to coordinate and facilitate gender
mainstreaming in national development;

c) Promote the protection, and observance of human rights in public and private
institutions;
d) To monitor, investigate and report on the observance of human rights in all spheres of
life in the Republic, including observance by the national security organs;
e) Receive and investigate complaints about alleged abuses of human rights and take steps
to secure appropriate redress where human rights have been violated;

f) On its own initiative or on the basis of complaints, to investigate or research a matter in

respect of human rights, and make recommendations to improve the functioning of State
organs;

g) Act as the principal organ of the State in ensuring compliance with obligations under
treaties and conventions relating to human rights;

h) Investigate any conduct in state affairs, or any act or omission in public administration
in any sphere of government, that is alleged or suspected to be prejudicial or improper or
to result in any impropriety or prejudice;

i) Investigate complaints of abuse of power, unfair treatment, manifest injustice or

unlawful, oppressive, unfair or unresponsive official conduct;

j) Report on complaints investigated under paragraphs (h) and (i) and take remedial action;
k) Perform any other functions prescribed by legislation.

7.4 Significance of Human Rights Knowledge to Police Officers

Knowledge on human rights to police officers is significant in the following ways:- a)
Building public confidence and fostering community cooperation.

b) Contributing to peaceful resolution of conflicts and complaints by police officers.

c) Ensuring successful legal prosecutions in the courts.
d) Realization by the public of the valuable social function of police officers
e) Fair administration of justice with confidence in the system.
f) Good example is set for others to protect the law.
g) Enhancing proactive policing because police are closer to the community
h) Enlists support from the media, the international community and political authorities.
i) Police are by their very mandate the first line of defense for human rights.
j) They are the guardians of the law, including human rights law.

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k) The community depends on the police to protect the full range of rights through the
effective enforcement of the country’s criminal laws.

l) In order to protect human rights, police must first know and understand them.
m) They are endowed with immense powers, which can curtail the liberties of individuals
unless the officers understand the boundaries of their powers.

n) By understanding human rights, they will be able to adjust and change from their
traditional habits enforcing oppressive laws.
o) The international community often uses the performance of the police in any state as a
yardstick of that state’s respect for human rights.

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