EXPLAINER: What the law says on use of firearms by police

There were mixed reactions after advice by Interior Cabinet Secretary Kipchumba Murkomen to police to use their weapons when attacked or invaded by criminals.

The CS, who was attending a graduation ceremony at the Border Police Training Campus in Kanyonyo, Kitui County, clarified that security agencies are well-trained and aware not to misuse their authority.

"We have not told police to misuse their weapons. We are reminding and defending them of their safety. They know well,” he said.

The ministry came out to explain that he did not issue a shoot-to-kill order.

“He advised police officers to be alert under situationsof criminal acts and when their stations of duty are attacked orinvaded by criminals,” a statement said.

On Wednesday, President William Ruto directed the police to shoot on site criminals who masquerade as protesters to burn and loot businesses and people’s property.

Speaking in Kilimani during the inspection of an ongoing Police Housing project, Ruto said police should only shoot them on the legs, so they can be taken to the hospital and after charged for their criminal activities.

Ruto, however, warned that police must not kill innocent civilians, but criminals must be dealt with in accordance with the law.

 “We want peace in Kenya, people to do business. A person who is going to burn another person's business and property, such a person should be shot in the legs, taken to the hospital and then to court. They should not kill him but they should shoot the legs," Ruto said.

The law provides that police officers can use proportional force toprotect lives and property, whether that property is public or private property, and whether that life is of an ordinary citizen, a leader, or apolice officer.

“It ceases being a right to demonstrate when some citizens orcriminals depart from the object or subject of demonstration andengage in lawlessness and outrightly unlawful endeavours.”

“When this happens, the sixth schedule of the National PoliceService Act (2011) provides a clear use of firearmsframework that guides police conduct when they areexposed to risky situations,” the statement added.

According to the Act, police officers are required to use peaceful andnon-violent means as their first course of action, like talking orwarning someone, before using force.

When it comes to using firearms or live bullets, the law permits anofficer to shoot when their life or a citizen’s life is inimmediate danger.

They can also shoot when protecting citizens, including themselve,sfrom serious harm and property, like during a violent robbery or mobattack or when they are stopping someone charged with a serious crime like murder or armed robbery from escaping jail or policecustody and when trying to stop someone from rescuing a dangerouscriminal.

These provisions align with both the National Police Service Act and Article 18 of the Penal Code, which recognise that law enforcement officers may use force to apprehend individuals resisting arrest, especially where the individual is committing or hascommitted a grave offence.

“When CS Murkomen made his remarks in regards to shooting, it isnot a blanket endorsement of extrajudicial killings, but a firmreminder that officers are permitted under the law to use force when they feel attacked or a citizen’s life is on the line due to criminalactivities,” the ministry said.

Officials said Murkomen’s comments were a reminder that while the policemust respect human rights, they also have a duty to defend Kenyansfrom violent criminals and threats to public safety, especially during chaotic protests or riots.

“His remarks emphasise the need for order, prevention of violentcriminal elements, and protection of both civilians and police officers during unpredictable protests and riots.”Citizens need the state and have to trust the state, even when theirfaith is challenged, the statement added.

The statement added that the government remains the sole entity with the instruments ofproviding state security and protection of all citizens regardless oftheir background, status or political affiliation.

“That is a responsibility it takes seriously, especially during times ofpublic unrest or national tension.”

“While citizens have the constitutional right to protest peacefully, thatright does not include violence towards fellow protestors, looting anddestruction of property,” the statement added.

Once protests turn into riots and lawlessness, where lives arethreatened and property is vandalised, they are no longer protecteddemonstrations in line with Article 37. They become criminalactivities and the constitution does not protect that, the statement added.

The Law Society of Kenya slammed Murkomen over his "shoot on sight" order to police against civilians who attack police stations.

The LSK termed the statement reckless, warning it could fuel more extrajudicial killings. Murkomen has since clarified that police are well aware of their limits in the use of forceLSK President Faith Odhiambo began by dismissing the authority of the CS to issue such operational directives to the police.

"The Cabinet Secretary has no authority under the law to issue such an order," she noted.

The lawyers' body issued a stern warning to police officers against misusing their firearms, adding: "Any unjustified act of aggression, disproportionate use of force, or extrajudicial killing carried out under such illegal directives will be deemed a premeditated crime."

"We sound our unequivocal warning to the National Police Service, that they are legally prohibited from acting upon and complying with the ultra vires, illegal, and unconstitutional shoot-to-kill order.