Kenya Needs to End Human Rights Abuses by Its Anti-Terrorism Police Unit
By Jonathan Horowitz
A new report just released by the Open Society Justice Initiative and Muslims for Human Rights, an non-governmental group based in Mombasa, Kenya, provides a chilling record of counterterrorism abuses by Kenya’s Anti-Terrorism Police Unit (ATPU). The report calls on the Kenyan government to hold ATPU officers accountable. It also calls on the foreign donor community to encourage Kenya’s ongoing police reforms and to withhold security assistance to ATPU units responsible for human rights abuses.
The report, “We’re Tired of Taking You to the Court,” underscores that the threat of terrorism to Kenya is real, as demonstrated most recently by the attack on Nairobi’s Westgate mall, which killed over 60 people and left over 100 injured. But to address it, Kenya’s government must deepen its investment in counter-terrorism strategies that are supportive of human rights. Resorting to unlawful acts in an effort to fight terrorism is counterproductive.
The report’s title comes from comments made to a suspect who was detained during an ATPU operation in Mombasa in November 2012, and who was told: “We’re tired of taking you to the court. Next time we’ll finish you off in the field.”
Public concern about terrorism in Kenya reflects a serious problem. In addition to the Westgate shopping mall attack, terrorist attacks have been on the rise since late 2011, when Kenya sent military forces into Somalia to fight Al Shabaab. The United States Embassy reported that in 2012 there were over 30 attacks involving grenades or explosive devices in Kenya. The embassy reported that at least 76 people died in these attacks, and around 220 people were injured. And even before this, two attacks in 2002 against a hotel and a passenger airplane followed the 1998 bombing of the U.S. Embassy in Nairobi.
The Kenyan government has credited the Anti-Terrorism Police Unit (ATPU) with providing a robust counterterrorism response, thwarting dozens of terrorist plots, and arresting or killing dozens of terrorist suspects. However, the record is tarnished by the counter-productive impact a poor human rights record that dates at least from 2007. It is particularly disturbing that many of the abuses in the report occurred after 2010, after Kenya began an effort to develop stronger human rights protections in the wake of the 2007/2008 violence that plagued the county.
This report comes at a time when Kenya is supposed to be undertaking sweeping police reforms aimed at ensuring the police do not have unlimited powers.
In the words of Francis Auma, MUHURI’s peace and security officer, “Kenyans came together to pass a new constitution and police reforms with the goal of ending incessant police brutality and impunity. The ATPU is unraveling that progress with every beating, disappearance, and unlawful killing it commits; this will only be stopped if its officers know that they will be held accountable for all abuses.”
The ATPU’s operations, which are documented in detail in the report, have included the use of excessive force during house raids; torture and ill-treatment of detainees; arbitrary detentions, including at least one case of disappearance; and rendering terrorist suspects to countries where they faced a real risk of torture. The report also provides credible allegations of three men being unlawfully killed by the ATPU.
Here are some of the credible allegations of APTU abuses you can read about in the report:
- Extrajudicial execution of Kassim Omollo and Salim Mohammed Nero in June 2013.
- Unlawful use of lethal force against Omar Faraj in October 2012. (Faraj’s wife, who the ATPU mistakenly thought was fatally injured in the operation, overheard the ATPU say they would leave her to die.)
- Beating of Swaleh Abdullah Said, a man captured in Mombasa on suspicion of terrorist-related activities, including the Westgate Shopping Mall attack.
- A November 13-14, 2012, ATPU operation in Mombasa during which the unit captured several terrorist suspects and beat them prior to bringing them to various police stations.
- Enforced disappearance of Badru Mramba on November 14, 2012.
- Arbitrary detention, physical and psychological abuse, and rendition to Uganda of suspects in the July 11, 2010, World Cup bombing in Kampala, Uganda. (Two separate Kenyan court rulings deemed those renditions unconstitutional.)
- Rendition of numerous individuals from Kenya to Somalia in 2007, who were then rendered to Ethiopia. (A Kenyan court found the detentions and renditions unlawful and amounted to torture. The now former head of the ATPU, Nicholas Kamwende, said in an affidavit he was involved in the operation that led to the apprehension and rendition of the plaintiffs.)
The counterproductive impact of acting outside the rule of law is clear. Due to the ATPU’s abuses, as well as the government’s failure to investigate numerous murders and disappearances by unknown perpetrators of terrorist suspects, many in the community believe Kenyan security forces carried out these crimes. This suspicion is attached, for example, to the murder of Samir Khan, whose body was found on the side of the road with marks of torture in April 2012; the shootings of Sheikh Aboud Rogo in August 2012; and the shooting of Sheikh Ibrahim Ismail and three others in October 2013. In large part due to this lack of trust and the ill-will existing between many in the Coastal community and the police, riots broke out in August 2012 and again in October 2013.
A relative of Kassim Omollo, the man allegedly extrajudicially executed by the ATPU in June 2013, also argues in the report that the ATPU’s tactics are counterproductive because they push citizens away from working with the authorities to deter terrorism: “[The government] becomes unpopular killing people. Even boys who want to surrender don’t feel safe to come out and do so. We need rehabilitation, but instead they are killing them. This thing [terrorism] must end to bring the country to peace,” and “the community has to be part of the solution.”
In addition, violent extremists use such abuses to justify violence and to recruit others.
Whether from the perspective of the need to maintain the rule of law, or of the need to deliver an effective counterterrorist strategy, or just to maintain police professionalism, the ATPU’s human rights record is a failure. The ATPU, which sits within the Kenya Police, must be subject to greater scrutiny and oversight. ATPU officials must be held accountable for their human rights abuses, and victims must receive reparations. Kenyan authorities and the foreign donor community must also press forward towards the full implementation of Kenya’s police reform agenda and push back against legislative attempts that have sought to erode many of these important advancements. To their credit, many have been doing this already.
Finally, with considerable encouragement from the United States, United Kingdom, and others, the former President signed into law in October 2012 the Prevention of Terrorism Act. We need to keep a close eye on how the law gets implemented. It attempts to strengthen counterterrorism powers in the country.
Unfortunately, the act contains vague definitions of terrorism, creates terrorist blacklists with inadequate due process guarantees, and expands police powers, all of which have the potential for being used in an overbroad manner against political opponents, civil society, religious and ethnic groups, minorities, and common criminals.
Until January 2019, Jonathan Horowitz was a senior legal officer for the Open Society Justice Initiative.