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Opinion: Can Law Enforcement be a Positive Actor for Change?

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— 6 minutes reading time

Dominic Pkalya
Senior Programme Manager, Strong Cities Network (SCN)

In our previous article we explored how violent extremist organisations can use a breakdown of trust between local communities and the state to harness support for their activities and recruit individuals at risk. In this issue, we look at the other side of the coin and outline how an accountable, transparent and human rights-grounded law enforcement system can be a positive actor of change, especially in a country like Kenya, in the context of preventing and countering violent extremism (P/CVE).

According to a recent study conducted by the Network for Religious and Traditional Peacemakers in collaboration with Finn Church Aid (FCA), Muslims for Human Rights (MUHURI) and Kenyan Muslim Youth Alliance (KMYA), people who believe that the police are performing their duties with professionalism and integrity are more likely to obey laws and support the system by coming forward with information.

One of the reasons why conviction rates of people accused of terrorism in Kenya are low is because few, if any,  volunteer to come forward as witnesses during trials. According to the study, as well as others such as ‘We are tired of taking you to the court’ by MUHURI and Open Society Justice Initiative, and The Daily Nation newspaper, some elements of law enforcement do resort to extrajudicial killings or enforced disappearances when chances of successful prosecution and conviction of terror suspects look dim.

It is important to note that cases of extrajudicial killings are not limited to terrorism but also cut across the spectrum of society. For example, during the enforcement of the dawn to dusk curfew to stem the spread of COVID-19 in Kenya, the media, including international media, reported cases of extrajudicial killings. However, this article would like to focus on how accountable and transparent law enforcement can be a positive actor of change in the context of PCVE and not just condemning the government.

Working in the public domain, police work in extremely difficult and challenging situations when investigating terrorism-related charges, leading them to act on rumours and not on solid evidence, leading to unnecessary arrests that cumulatively erode the state’s legitimacy.

The solution, according to the study, is twofold:

As confirmed by an independent evaluation of the research project, of which the author was one of the principal investigators, law enforcement and the entire criminal justice system should, as priority, devote energy towards investigations and evidence-gathering before formally arresting and charging suspects in courts. This is the most direct way to prevent false accusations and loss of legitimacy in the long-term.

Secondly, law enforcement should acknowledge their errors by directly addressing a suspect who has been falsely accused. The Internal Affairs Unit (IAU) of the National Police Service that addresses complaints against police officers as well as the civilian led Independent Policing Oversight Authority (IPOA) should also help exonerate people who were accused on trumped up terror charges, as well as take action against the offending police officers. Such actions will go a long way to enhancing police legitimacy in the fight against terrorism.

“A fair and objective judicial process aids in healing and enhancing the reputation and legitimacy of the criminal justice system as a whole”

The study also established that courts have a duty to mitigate against trumped up terrorism charges. Centre of Human Rights and Policy Studies (CHRIPS) published “Case Digest: Decisions of Kenyan Courts on Terrorism” in May 2020 in which it identified a number of collapsed cases courtesy of insufficient evidence or inflated charges. For example, the publication cites an appellate case of Abdalla Said Katumu v Republic [2018), that was dismissed by the High Court in Kwale because of insufficient evidences and exaggerated or falsified charges. In his ruling, the judge castigated the Prosecution for failing to thoroughly investigate the case as was initially presented by the police. In other words, it can be deduced that by identifying and ruling against frivolous charges, courts will offer some checks and balances on the other criminal justice system agencies and in the process build community confidence in courts.

A fair and objective judicial process aids in healing and enhancing the reputation and legitimacy of the criminal justice system as a whole. As was shared by community members and law enforcement during the evaluation of the project, it was clear that when suspects are fairly convicted of terrorism offenses, in full compliance with rule of law, their families and communities will feel that justice had been dispensed fairly and reprisals are unnecessary.

The Journey to Extremism in Africa study that was published by UNDP in 2017 concluded, among other things, that state excesses, including extrajudicial killings, especially of family members, are the ‘tipping’ points for members of the public joining extremist groups. Based on this finding as well as others referenced in this opinion article, it can thus be argued that a fair judicial process that does not subject citizens to state excesses can cumulatively reduce the number of cases of people joining extremist groups to exact revenge against unlawful or unfair convictions or killings of their family members. Perhaps this is an area meriting further research.

Furthermore, people base their views on the criminal justice system on their personal interactions with its representatives, usually police. As such, how these actors conduct themselves during interrogations, searches, arrests and in court, and how they communicate with suspects and their families, is key to enhancing the legitimacy of the entire system. Citing prior studies, the research asserts that when officers communicate well and listen and treat citizens with respect, citizens respond in kind.

Another area that enhances the government’s legitimacy and trust in its institutions is in public service delivery. A high rate of satisfaction in public services, including in P/CVE efforts, increases the chances of public cooperation with the government, thereby opening the door to constructive dialogue and trust-building. It is therefore critical that governments respond to the needs of its citizens and that the delivery of these services addresses the grievances of the most vulnerable, especially in areas bordering Somalia, which are currently experiencing education paralysis after non-local teachers have fled the region following increased terrorist attacks targeting them.

In summary, research has demonstrated that a fair judicial process, coupled with humane treatment of terrorist suspects and their families can heal the rift between law enforcement and communities. In other words, transparency within the criminal justice system, not only in the prosecution of terror suspects but other criminal cases as well, backed up by robust oversight by civil society, government agencies such as IPOA and IAU for the case of Kenya, is key in public prosecutions. Transparency could include, amongst other practices, police officers publicly identifying themselves during arrests, clear warrants for arrests that are shared with the suspect and families, and access to representation by advocates. This process, when undertaken in compliance with the rule of law, will cumulatively contribute to the government’s de-radicalisation efforts and help to build social cohesion and resilience to violent extremism.

Law enforcement, and the criminal justice system more broadly, should not perceive human rights as an impediment to their work, especially in the P/CVE context, but rather as an enabler of a fair and legitimate justice conducive to the national ethos of healing and reconciliation.