POLICE BRUTALITY IN KENYA: ARE EXISTING LEGAL REMEDIES ENOUGH TO GUARANTEE ACCOUNTABILITY?

INTRODUCTION.

The police play a fundamental role in maintaining law and order, protecting life and property, and enforcing the law. However, the exercise of police powers must remain subject to the Constitution and the law. In Kenya, concerns surrounding police brutality continue to raise important questions about the protection of fundamental rights and the effectiveness of mechanisms established to hold police officers accountable. Police brutality may take various forms, including unlawful use of force, torture, cruel, inhuman or degrading treatment or other abuses of police powers.

Kenya has established a comprehensive legal framework intended to protect individuals from such abuses. Article 29(f) of the Constitution of Kenya 2010 guarantees every person the right to freedom and security, including protection from cruel, inhuman or degrading treatment.¹ In addition, Article 244 requires the National Police Service to uphold professionalism and discipline, promote transparency and accountability, and comply with constitutional standards relating to human rights and fundamental freedoms.² The Prevention of Torture Act 2017 further provides a statutory framework for the prevention, prohibition and punishment of torture and other cruel, inhuman or degrading treatment.³

Despite these constitutional and statutory safeguards, the persistence of police misconduct raises a critical question: are the existing legal remedies and accountability mechanisms sufficient to guarantee effective accountability for police brutality in Kenya?

This article examines Kenya’s constitutional and statutory framework governing police conduct, the mechanisms available for holding police officers accountable and the approach taken by the courts in addressing violations of fundamental rights. It argues that although Kenya possesses a substantial legal framework for preventing and addressing police brutality, the effectiveness of these protections ultimately depends on their consistent implementation, independent oversight, timely investigations and access to effective remedies.[1]

CONSTITUTIONAL AND STATUTORY FRAMEWORK GOVERNING POLICE CONDUCT.

The legal framework governing policing in Kenya is founded on the 2010 Kenyan Constitution and supplemented by legislation regulating the exercise of police powers. The framework seeks to balance the State’s responsibility to maintain public safety and order with the obligation to protect individual rights and freedoms. The powers of the police officers are constrained by constitutional rights, statutory requirements and principles of accountability.

Constitutional framework

The Constitution provides the primary legal foundation for regulating police conduct. Article 29 protects every person from arbitrary deprivation of freedom and security and expressly prohibits torture and cruel, inhuman or degrading treatment or punishment. This protection is particularly important in the policing context because individuals are often placed in situations where police officers exercise considerable physical and coercive authority over them.

Article 28 further guarantees the inherent dignity of every person. The protection of dignity imposes an obligation on police officers to treat individuals, including suspects and persons in custody, humanely and with respect. This obligation is reinforced by Article 244 which establishes the objects and functions of the National Police Service. Among other requirements, the National Police Service must uphold the highest standards of professionalism and discipline and must comply with constitutional standards of human rights and fundamental freedoms. They must also train its officers to respect human rights and human dignity.

The constitutional framework therefore establishes an important limitation on police power: the maintenance of law and order cannot lawfully be pursued at the expense of fundamental rights. Police officers remain State actors and are consequently bound by the Constitution when exercising their powers.

Article 245 is also significant because it establishes the office of the Inspector-General and provides for the independent command of the National Police Service. The constitutional independence of police command is intended to protect policing from inappropriate interference while simultaneously placing responsibility for the administration and command of the Service within a defined constitutional structure.

Statutory regulation of the use of force

The National Police Service Act, 2011 gives effect to the constitutional requirements governing police conduct and provides more detailed restrictions on the use of force.

The Sixth Schedule of the Act establishes specific conditions governing the use of force. A police officer must first attempt to use non-violent means and may resort to force only where those means are ineffective or unlikely to achieve the intended result. Where force is necessary, it must be proportionate to the objective being pursued, the seriousness of the offence and the resistance encountered and must be limited to what is necessary.

The Act further imposes accountability obligations following the use of force. Where force results to an injury, officers must provide medical assistance and notify relatives or close friends of the affected person. Any use of force must also be reported to a superior officer, while incidents resulting in death or serious injury must be reported to the Independent Policing Oversight Authority for investigation. Failure to comply with these reporting requirements constitutes to a disciplinary offence.

These provisions are significant because they demonstrate that Kenyan law does not treat the use of force as an unrestricted police power. Instead, force is subject to the principles of necessity, proportionality and accountability. The statutory framework provides a legal basis for distinguishing legitimate police action from excessive or unlawful force.

Prohibition of torture and cruel, inhuman or degrading treatment

The protection against police brutality is further strengthened by the Prevention of Torture Act, 2017. The Act criminalizes torture and defines it in terms of the intentional infliction of severe physical or mental pain or suffering for specified purposes, including obtaining information or a confession, punishment, intimidation or coercion, where the conduct is inflicted by or with the involvement of a public officer or a person acting on behalf of a public officer.

Section 5 makes torture a criminal offence punishable by imprisonment for a term not exceeding twenty-five years or life imprisonment where the victim dies as a result of the torture.

The importance of this legislation is that it moves beyond simply declaring torture unlawful and establishes individual criminal responsibility for those who engage in it. This reinforces the constitutional principle that public office cannot be used as a justification for violating fundamental rights.

Oversight and accountability

The legal framework also recognises that constitutional and statutory protections require independent mechanisms of accountability. The Independent Policing Oversight Authority Act, 2011 established IPOA as an external oversight institution responsible for, among other functions, investigating complaints against members of the National Police Service and investigating deaths and serious injuries caused by police action.

The statutory requirement is that serious incidents involving police use of force should be reported. It creates an external accountability mechanism intended to prevent police institutions from being the sole investigators of serious allegations against their own officers. This is consistent with the broader constitutional emphasis on transparency and accountability under Article 244.

Critical assessment

Theoretically, Kenya possesses a relatively comprehensive framework regulating police conduct. The Constitution protects dignity, security and freedom from torture, the National Police Service Act regulates the circumstances in which force may be used, the Prevention of Torture Act criminalises torture and IPOA provides an external oversight mechanism.

However, the existence of extensive legal protections does not necessarily guarantee their effective implementation. The continued occurrence of excessive force and other forms of police misconduct raises a fundamental question concerning the gap between the law and its enforcement.

This distinction is central to understanding police brutality in Kenya. The problem cannot simply be characterized as an absence of legal rules. Rather, it raises questions about whether existing rules are consistently observed, whether officers who violate them are effectively held accountable and whether victims have meaningful access to remedies. The effectiveness of Kenya’s framework must therefore be assessed not only by examining what the law provides, but by also considering how courts, oversight bodies and law-enforcement institutions apply those protections in practice.[2]

FORMS AND MANIFESTATIONS OF POLICE BRUTALITY IN KENYA.

Excessive and disproportionate use of force

Police officers are legally permitted to use force in certain circumstances, but the law requires that such force be necessary and proportionate. The Sixth Schedule to the National Police Service Act requires officers to attempt non-violent means first and provides that force must be proportionate to the objective, the seriousness of the offence and the resistance encountered.

Police brutality therefore arises where force exceeds what is reasonably necessary in the circumstances. This may occur during arrests, investigations, public-order operations or other encounters between officers and members of the public. IPOA’s monitoring of public protests has documented breaches of constitutional policing standards involving disproportionate force.

This demonstrates the central tension in Kenyan policing: the law recognises a limited power to use force, but the exercise of that power can become unlawful where necessity and proportionality are disregarded.[3]

Torture and cruel, inhuman or degrading treatment

Police brutality may also take the form of torture or other cruel, inhuman or degrading treatment especially where individuals are subjected to abuse while under police control. Such conduct directly contravenes Article 29 of the Constitution and the Prevention of Torture Act.

This is particularly concerning because persons in police custody are dependent on State authorities for their safety and protection. The State therefore bears a heightened responsibility to ensure that police custody does not become an environment in which constitutional rights are violated.[4]

Arbitrary arrests, unlawful detention and deaths in custody

Police brutality is not only limited to physical force but may also manifest through arbitrary arrest, unlawful detention and violations committed against persons in custody. Academic analysis of deaths in police custody in Kenya has identified shortcomings in reporting, investigation and prosecution as important accountability concerns.

These forms of abuse are particularly significant because they demonstrate that police brutality can involve both acts of commission and failures of protection. Where a person dies or suffers serious harm while under police control, questions arise not only concerning the conduct of individual officers but also concerning institutional responsibility and effective investigation.

Abuse of police powers during public assemblies

Public assemblies present another context in which police powers may come into conflict with constitutional rights. Although police have a legitimate responsibility to maintain public order, that responsibility must be exercised consistently with constitutional protections and the statutory requirements governing force.[5]

JUDICIAL RESPONSE TO POLICE BRUTALITY IN KENYA

Kenyan courts have played an important role in enforcing constitutional protections against police brutality by examining the legality of police conduct, awarding remedies to victims and affirming that police powers must be exercised within constitutional and statutory limits. The following cases illustrate the judicial approach to excessive force, torture and the policing of public demonstrations.

Titus Barasa Makhanu v Police Constable Simon Kinuthia Gitau No 83653, Divisional Traffic Office Kilimani, Director of Public Prosecutions & Attorney General [2016] KEHC 6628 (KLR)

The petitioner challenged the conduct of police officers during his arrest and alleged violations of his constitutional rights. The central issue was whether the treatment he received amounted to unlawful and excessive use of police force. The High Court considered the constitutional protections under Article 29 alongside the statutory requirements governing the use of force. The court emphasized that police officers may use force where lawfully necessary, but such force must remain proportionate to the circumstances and the objective being pursued. The decision demonstrates that police powers do not authorize excessive violence against persons who have already been apprehended. The case is significant because it reinforces proportionality as a critical limitation on police power and illustrates the availability of constitutional remedies where that limitation is breached.[6]

Charles Masinde Rofa v Commissioner of Police & 2 others [2019] KEHC 2358 (KLR)

The petitioner alleged violations of his rights under Articles 26 and 29 of the Constitution arising from his treatment by police officers. The court was required to determine whether the alleged conduct constituted violations of the petitioner’s rights to life, freedom and security of the person and protection from torture and cruel, inhuman or degrading treatment. The case demonstrates the willingness of the High Court to examine police conduct against the constitutional standards contained in Article 29 rather than treating police authority as an independent justification for the treatment of suspects. Its importance lies in reinforcing the principle that persons interacting with the police remain holders of constitutional rights, including when under State control. The case therefore supports the argument that police accountability is a constitutional requirement rather than merely an administrative matter.

Muchai & 5 others v Attorney General (Civil Appeal 524 of 2019) [2025] KECA 525 (KLR)

The Court of Appeal recently addressed police brutality arising from the suppression of peaceful demonstrations. The appellants were among persons who had participated in demonstrations at Uhuru Park’s Freedom Corner between 1992 and 1993 while advocating for the release of political prisoners. They alleged that police and General Service Unit officers subjected them to severe physical abuse, thereby violating their constitutional protections against torture and cruel, inhuman or degrading treatment. The Court of Appeal upheld the finding that the appellants’ rights had been violated and awarded each appellant Kshs 2.5 million in general damages and compensation.

The decision is significant because it demonstrates that police brutality during public demonstrations may give rise to State liability and substantial constitutional remedies. However, compensation remains primarily a remedial response after a violation has occurred and cannot, on its own, prevent future abuses. The case therefore supports the argument that effective policing requires not only judicial remedies for victims but also preventive institutional accountability.[7][8]

[1][1][1] Constitution of Kenya 2010, art 29(f).

Constitution of Kenya 2010, art 244.

Prevention of Torture Act No 12 of 2017.

[2][2][2][2][2][2][2][2] Constitution of Kenya 2010, art 29

ibid, art 28.

ibid, art 245.

National Police Service Act No 11A of 2011.

ibid, Sixth Schedule pt A paras 1–2.

ibid, Sixth Schedule pt A paras 3–8.

Prevention of Torture Act No 12 of 2017, s 5.

Independent Policing Oversight Authority Act No 35 of 2011.

[3] National Police Service Act, No. 11A of 2011 (Kenya), s 61(1)– (2), Sixth Schedule, Part A paras 1–2.

[4][4] Constitution of Kenya, 2010, art 29; Prevention of Torture Act, No. 12 of 2017 (Kenya), ss 4–7.

Criminal Procedure Code, Cap. 75, Laws of Kenya, s 387(1).

National Police Service Act, No. 11A of 2011 (Kenya), Fifth Schedule, para 13.

Constitution of Kenya, 2010, art 37; National Police Service Act, No. 11A of 2011 (Kenya), ss 49(1), 54(1) and 61(1)– (2), Sixth Schedule; Public Order Act, Cap 56, Laws of Kenya, s 5(8) and s 14.

[5] Russel Crowe, ‘The Response of IPOA and Other State Institutions to Deaths in Custody and Police Misconduct in Kenya’ (2022) 1 Kabarak Law Review 199.

[6] Titus Barasa Makhanu v Police Constable Simon Kinuthia Gitau No 83653, Divisional Traffic Office Kilimani, Director of Public Prosecutions & Attorney General [2016] KEHC 6628 (KLR).

[7] Charles Masinde Rofa v Commissioner of Police & 2 Others [2019] KEHC 2358 (KLR).

[8] Muchai & 5 Others v Attorney General (Civil Appeal 524 of 2019) [2025] KECA 525 (KLR).

CHALLENGES IN HOLDING POLICE OFFICERS ACCOUNTABLE

Despite Kenya’s extensive legal and institutional framework, several challenges continue to undermine effective accountability for police misconduct. First, there remains a significant gap between legal standards and their implementation. Although the Constitution and legislation impose clear obligations on police officers, violations continue to occur, demonstrating that the existence of legal safeguards does not necessarily guarantee compliance.

Second, independent oversight institutions face institutional and operational constraints. IPOA’s January–June 2024 Performance Report identified inadequate funding, non-cooperation by some witnesses and National Police Service officers and parallel investigations between IPOA and the

Directorate of Criminal Investigations as challenges affecting its operations. These challenges may delay investigations and weaken the effectiveness of mechanisms established to hold police officers accountable.

Third, accountability is affected by difficulties in securing cooperation and evidence necessary to investigate alleged misconduct. This is particularly significant where the alleged perpetrators are State officers and victims or witnesses may depend on the same institutions for protection and access to information. The effectiveness of oversight therefore depends not only on the existence of investigative bodies but also on institutional cooperation and implementation of their recommendations.

These challenges demonstrate that Kenya’s principal problem is not the absence of legal protections but the difficulty of translating those protections into consistent institutional practice. Strengthening accountability therefore requires measures that improve oversight capacity, institutional cooperation and enforcement of existing legal standards.

RECOMMENDATIONS

Addressing police brutality in Kenya requires more than the existence of constitutional and statutory safeguards. Greater emphasis should be placed on effective implementation, institutional accountability and prevention.

First, the National Police Service should strengthen continuous human-rights and public-order training, particularly on the principles of necessity, proportionality and non-violent methods of policing. IPOA has previously recommended comprehensive public-order management training and emphasized the need for improved communication, command and coordination within the Service.

Second, the independence and operational capacity of IPOA should be strengthened. Adequate financial and institutional resources would enable the authority to investigate complaints promptly and effectively and to monitor compliance with its recommendations.

Third, stronger mechanisms should be developed to ensure implementation of IPOA recommendations. The National Police Service should establish clear mechanisms for tracking and reporting compliance with recommendations concerning disciplinary action, prosecution and institutional reform.

Finally, police officers who violate constitutional and statutory standards should face effective disciplinary or criminal consequences. Consistent accountability would help deter misconduct while reinforcing public confidence in policing.

CONCLUSION

Police brutality in Kenya remains a significant challenge to the protection of constitutional rights and the rule of law. Although Kenya has established a comprehensive legal and institutional framework regulating police conduct including constitutional protections, statutory limits on the

use of force and independent oversight mechanisms, persistent violations demonstrate a gap between legal standards and their implementation.

The decisions of Kenyan courts demonstrate that police officers are not above the law and that victims of unlawful police conduct can obtain constitutional remedies. However, judicial remedies alone cannot eliminate systemic police brutality. Effective change requires consistent enforcement of existing laws, adequately resourced oversight institutions, effective implementation of accountability mechanisms and continuous human rights-based training within the National Police Service.

Ultimately, combating police brutality requires a policing culture founded on professionalism, proportionality, transparency and respect for human dignity. Kenya’s challenge is therefore not merely to develop stronger laws, but to ensure that existing constitutional and statutory protections are translated into everyday policing practice.

REFERENCE(S):

TABLE OF CASES

Charles Masinde Rofa v Commissioner of Police & 2 others [2019] KEHC 2358 (KLR)

Muchai & 5 others v Attorney General (Civil Appeal 524 of 2019) [2025] KECA 525 (KLR)

Titus Barasa Makhanu v Police Constable Simon Kinuthia Gitau No 83653, Divisional Traffic Office Kilimani, Director of Public Prosecutions & Attorney General [2016] KEHC 6628 (KLR)

TABLE OF LEGISLATION

Constitution of Kenya 2010

Criminal Procedure Code (Cap 75)

National Police Service Act No 11A of 2011

Prevention of Torture Act No 12 of 2017

Public Order Act (Cap 56)

BIBLIOGRAPHY

Secondary Sources

Crowe R, ‘The Response of IPOA and Other State Institutions to Deaths in Custody and Police Misconduct in Kenya’ (2022) 1 Kabarak Law Review 199

Independent Policing Oversight Authority, January–June 2024 Performance Report

Independent Policing Oversight Authority, Monitoring Report on Policing of the 2024 Protests