Crisis of Command
America’s Broken Civil-Military Relationship Imperils National Security
On June 12, activists and allies of the Black Lives Matter movement gathered in cities around the world to take a knee for eight minutes and 46 seconds in solidarity with George Floyd and other victims of American police violence. In the Kenyan capital, Nairobi, at least seven such protests took place across the city, drawing hundreds of demonstrators. The spark was a murder in Minneapolis, but the fuel was mounting anger over police brutality right here in Kenya.
The Kenyan police and security services have a long history of abusing and killing members of the public they are supposed to protect. This tradition dates back to the British colonial period, but it survives today thanks partly to colonial-era laws that remain on the books, including the Public Order Act, which empowers law enforcement to arrest people for loitering, vagrancy, and other vague offenses that amount to criminalizing poverty. In March, as governments around the world imposed public health restrictions to halt the spread of the novel coronavirus, Kenya invoked the Public Order Act to enforce a lockdown in major cities as well as a dawn-to-dusk curfew—leaning on the police, rather than health officials, as the first line of defense against the pandemic. Since then, security forces have killed at least 15 people, including a 13-year-old boy who was standing on the balcony of his family’s home when a police officer shot him. The country’s Independent Policing Oversight Authority, a watchdog agency, has received more than 80 complaints about abusive police behavior during the same period.
For those who marched in solidarity with Floyd, doing so was an opportunity to harness the global attention on his singularly resonant case to highlight the rash of police killings in Kenya—and to underscore the severe class and race disparities in enforcement of public order laws. But it was an opportunity that came with risks, and like the protesters in American cities who were met with excessive force, Kenyan demonstrators and activists have themselves become targets of the police. For those who speak out against the excesses of the state, including the families of its victims, the danger will only increase as the protests inevitably peter out and the media spotlight fades. Right now, there is safety in numbers, but for those who are the faces of this popular mobilization, the risk of reprisal—whether in the form of arbitrary arrest, assault, or even extrajudicial killing—will grow once people look away.
Invoking the Public Order Act in the midst of a public health crisis was a tremendous error in judgment. Not only did this decision by President Uhuru Kenyatta’s government lead to nearly unchecked police brutality; it also compounded the stigma against those who tested positive for COVID-19 or were merely suspected of having the disease. This drove people who may have been infected underground, allowing the virus to spread more rapidly than it otherwise would have. (To date, Kenya has nearly 5,000 confirmed cases and 128 confirmed deaths.) More than anything, however, the decision to invoke the Public Order Act and unleash the police underscored the extent to which Kenya’s government has hollowed out its public health institutions and overinvested in its security services.
Public order laws are a cruel legacy of many former British colonies. In the colonial era, they were used to quash dissent and to prevent Africans from organizing against the violence of imperial rule. Even British scholars with misguided sympathies for colonization admit that the primary objective of these laws was to protect the lives and property of European settlers, regardless of the consequences for African people. Kenya’s Public Order Act was first published in 1950, on the cusp of the armed rebellion against colonial rule, but it represented the culmination of decades of progressive criminalization of black life that began with the declaration of the British protectorate over Kenya in 1897.
Public order laws were used to quash dissent and to prevent Africans from organizing against the violence of imperial rule.
At independence, some elements of the colonial criminal code were repealed because they were incompatible with majority rule and Kenyan sovereignty, but others were retained, including the Public Order Act. The law has been amended on several occasions, but its basic tenet—allowing the police to round up pretty much anyone they choose, anywhere they choose—endures to this day despite being one of the main instruments used to justify violence against the black population during the struggle for independence. Under the authoritarian rule of Kenya’s first two presidents, Jomo Kenyatta and Daniel arap Moi, these laws were used to prohibit opposition gatherings as well as traditional group meetings and rites that the presidents—both educated by Christian missionaries—opposed.
Repealing the Public Order Act was a key demand of those who led the push for democracy and constitutional reform in the 1990s. But when a new constitution was finally passed in 2010, the law was retained. Its underlying logic—that the state must have unfettered power to prevent people from gathering or merely existing at the wrong place at the wrong time—has not been seriously challenged. Nor has the fact that the law is primarily enforced against Kenya’s African poor.
Since the Public Order Act was invoked to fight the pandemic, it is this demographic that has suffered most. In poor and working-class neighborhoods, police have detained and arrested anyone in the streets after curfew—and as videos taken by bystanders reveal, in the final moments before curfew, as people attempted to rush home from work. From the earliest days of the lockdown, reports of police excesses abounded. In the coastal city of Mombasa, police used tear gas to disperse commuters, detaining others and forcing them to lie practically on top of one other on the ground—blatantly contravening the government’s social-distancing guidelines. In Mathare, an informal settlement of Nairobi, police chased residents through the streets, beating them with batons. One officer caught sight of 13-year-old Yasin Moyo, who stood watching from his family’s third-floor balcony. The officer cocked his rifle and fired, hitting the boy in the abdomen and killing him. “He was home with his family,” Moyo’s father told me at one of the George Floyd solidarity marches. “And we are the only people in this house. Why would a police officer shoot?”
The Public Order Act has not only sanctioned an epidemic of police violence in Kenya but also indirectly helped foster a culture of impunity within the security services. Empowered to settle political scores, stamp out traditional rites, and clear the streets of those deemed undesirable, the provincial security forces that were created by the colonial system but retained at independence acquired an extraordinary degree of latitude—latitude that was transferred to the national police and security services with the new constitution in 2010. The police grew even more powerful after the 9/11 terrorist attacks, when Kenya became an important U.S. counterterrorism partner and its intelligence and security services received new resources, hardware, and surveillance capabilities. The Kenyan police and other domestic security services, including the wildlife and forestry services, stand accused of hundreds of extrajudicial killings in recent years, but few officers have been held accountable.
Those who have spoken out against these killings or demanded justice have often turned up dead. In 2009, lawyer and rights activist Oscar Kamau Kingara released a report accusing the police of killing and kidnapping hundreds of people as part of a crackdown on organized crime. He and one of his colleagues, who had also investigated police violence, were shot dead in broad daylight by men who were never identified. In 2016, lawyer Willie Kimani, his client, and their driver disappeared after lodging a complaint against the police. Two weeks later, their bodies were found in a river. And in 2019, rights activist Caroline Mwatha, who had campaigned against extrajudicial killings, was found dead at a city mortuary. For human rights defenders in Kenya, the threat of police violence is omnipresent.
Those who have spoken out against police killings or demanded justice have often turned up dead.
As in the past, those seeking to hold the state accountable for abuses during the coronavirus pandemic have become targets of intimidation and harassment. Even as it has enforced a curfew in the name of public health, the Kenyan government has evicted thousands of people from land that it claims was illegally allocated, sending police officers to force people from their homes in the dead of night. Ruth Mumbi, an activist and community mobilizer whose brother-in-law was allegedly killed by the police in 2015, documented the violent eviction of almost 5,000 households from the informal settlement of Kariobangi in Nairobi last month, later giving firsthand accounts to local and international media outlets. Soon after, Mumbi received a phone call from a man who claimed to be a police officer in Kariobangi. He threatened to make her disappear.
Having spoken out about Moyo’s murder, the boy’s father told me that he also fears reprisals from the police. The police know where his family lives and what he and his wife look like. The officer who shot Moyo was finally arrested, but only as a result of unprecedented pressure from the global anti-police-brutality movement and after weeks of refusing to appear in court because he claimed to be in quarantine for COVID-19. Moyo’s father and others who have mobilized on behalf of the slain boy remain understandably wary of being targeted. And as the momentum generated by anti-racist protests around the world dissipates and most Kenyans go on with their lives, the most visible activists, sadly, will have good reason to fear.
Social change is a process, not an event. Those seeking to change the patterns of police violence must dig in for the long haul. When the big international nongovernmental organizations move on to their next campaigns and the national conversation pivots to the next scandal, victims and survivors will still have to live in the same neighborhoods, without their loved ones and with the consequences of their newfound visibility.
But as fleeting as this moment of global scrutiny on police violence might end up being, it offers a unique opportunity to reexamine laws and practices whose origins and purposes run counter to democratic aims. If racist policing in the United States is the product of an incomplete abolitionist project, racist and classist policing in Kenya and other postcolonial settings stems from an incomplete decolonization effort. Finishing both struggles will require more than simply reforming police practices. It will require asking, honestly and openly, what purpose the police should serve and whose laws they should enforce.
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