HOW SHOULD POLICE 'PLAN' THEIR RESPONSE AMID ESCALATING PROTESTS IN KENYA?

Amid escalating protests led by Azimio la Umoja One Kenya Alliance, hundreds of demonstrators were, on Thursday, dispersed by the police using tear gas and water cannons spraying coloured water. The approach of using pink-coloured water during the demonstrations in Nairobi, which some christened 'Operation Girl' mainly because of the use of pink-dyed water, caught many by surprise. The practice is not exclusive to Kenya. Such has occurred in Uganda, Egypt, Hong Kong, Israel, Japan and South Africa demonstrations. As a matter of fact, blue, purple and pink are the commonly used dyes. The most famous use of coloured-water cannons occurred in South Africa in 1989, when police doused anti-apartheid activists with purple water.?

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The spraying of coloured water is considered a cheaper alternative employed by the police to deter, disperse and identify rioters. While it is effective in deterrence, because not many people enjoy getting wet or having their clothes stained, one can argue that it can be subjective. The use of water cannons poses a threat to freedom of expression and peaceful assembly. Using coloured water means that several people, including peaceful protesters, bystanders and journalists, could be indiscriminately marked by the indelible dye and victimised later during the arrest of suspected violent protestors. The use of water canons also poses the risk of serious injury. Individuals can suffer traumatic or internal injuries from the force of a water stream or forced falls and slipping. These raise fundamental human rights concerns.

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The functions of police, mainly among others, revolve around maintaining law and order and protecting life and property. It is, therefore, important for police to recognise that the preservation of human life is exceptionally paramount. Their moral obligation stretches beyond legal compliance. While they may legally use force in several situations as the law provides, they should elect to regulate themselves by setting a clear choice between what they can and will do. In the current political case in the country, for example, they must make a moral decision that they will only use lethal force if life is under threat or the circumstances provided by the law and not during those situations where less extreme measures are adequate. The citizens are also responsible, and it is simple; to comply with the law.?Considering this, provisional factors should be taken into account by the police before deciding to deploy water canons, especially using dyes or chemical agents to manage a crowd of protestors. The primary mandate of the police is to protect lives and property, and random violence does not discharge the police from their primary obligation of protection.

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Since Kenya faces scheduled protests every week, it is imperative that the police PLAN accordingly and, most importantly, base their plans on protecting life and property. The 'PLAN concept '(an acronym standing for Proportionate, Legal, Accountability and Necessity) could be of use, especially in their response to the protestors:

Proportionate?

For the police to avoid unnecessarily escalating tensions during protests, they must ensure that their responses to large-scale gatherings of demonstrators are?proportionate?with their behaviour and mood. They must, however, strike a balance between this worry and the need to maintain the security of their officers and the public. This balance necessitates a tiered response strategy that starts calmly but allows authorities to respond quickly to safeguard public safety if the demonstration threatens to degenerate into violence or severe criminal conduct. The amount of force should also be?proportionate?to the risk.

Legal

The police must be careful to ensure that whatever action they take in response to protestors must be?legal?to avoid unnecessary harm and or liability issues relating to their actions. Whereas a police officer is allowed by law to use force, the officer shall comply with the guidelines set out in the Sixth Schedule of the National Police Service Act, which gives clear conditions.?

Accountable

Every police officer must be aware that they will be individually held?accountable?for their actions and must apply themselves within the confines of the law. They should therefore be ready to take responsibility for their actions. Section 49 of the National Police Service Act is evident in the general powers of police officers, including the circumstances under which police are allowed to use force. It stipulates in Section 49 (13) that: "a police officer who abuses any powers conferred by this Act commits an offence and is liable to disciplinary or criminal action, and a person whose rights violated by a police officer shall be entitled to redress and compensation upon the decision of a court, tribunal or other authority."

?Necessity

The Sixth Schedule of the National Police Service Act [Sections 61(2), Act No. 11 of 2014, s. 54.] stipulates that a police officer shall always attempt to use non-violent means first. Force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result. The police must base their decisions on this provision to avoid unnecessary harm to peaceful protestors. In the dispersal of violent assemblies, the police may only use firearms when less dangerous means are not practicable and only to the minimum extent necessary.

Citizens also have a considerable role to play. They must recognise that the police are primarily mandated to serve and protect and therefore ensure that they act within the confines of the law to avoid unnecessary confrontations with the police. Whilst every citizen has a right to, in this context, protest and demonstrate, it is prudent that they comply with the law and lawful orders and act peaceably.