Legal Provisions on Use of Firearms by Kenyan Police

Kenyan police have the primary role of maintaining law and order in the country. However, many instances show that some of the members of the Kenyan police force commit extrajudicial killings.

The media reports about some members of the Kenyan Police Service shooting suspected criminals on a regular basis. However, the law is very clear on how the police shall handle their firearms. The National Police Service Act contains guidelines on the responsible use of firearms by the Kenyan Police.

The National Police Service shall play certain roles such as to:

• provide assistance to the public when in need;
• maintain law and order;
• preserve peace;
• protect life and property;
• investigate crimes;
• prevent and detect crime; and
• apprehend offenders.

Power of the Kenyan police to use firearms

Section 61 of the National Police Service Act guides the Kenyan police on the power to use firearms. They shall perform their functions or exercise their power through non-violent means. However, a police officer can utilize firearms according to the rules on the use of firearms contained in Schedule Six of the Act.

Conditions as to the Use of Firearms

Part B of the Sixth Schedule of the National Police Service Act contains guidelines on the use of firearms by Kenyan police.

The police shall use firearms when less extreme measures are inadequate and for two main purposes:

• to save or protect the life of the officer or another person; and
• to defend themselves or another person against an impending threat of life or serious injury.

When an officer intends to use a firearm, they shall identify themselves and give a clear warning of their intention to use the firearms. They shall also provide sufficient time for the suspect to observe the warning, except:

• where doing so would place the officer or another person at risk of death or serious harm; or
• if it would be clearly inappropriate or pointless in the circumstances.

Despite that, a Kenyan police officer shall make every effort to avoid the use of firearms, especially against children. They shall also report any use of a firearm to their superior officer even if there is no injury that takes place.

If the use firearms lead to death, serious injury and other grave consequences, the officer in charge or a direct superior to the person who caused the death or injury, shall report to the Independent Police Oversight Authority (IPOA). IPOA shall then investigate the case, even though the Inspector General of Police may also conduct independent investigations into the matter.

A police officer who makes the report to IPOA shall secure the scene that the act took place to enable investigations. They shall also notify the family, relative, or friend of the death or injury within a short and reasonable time.

Further guidelines on the use of firearms by Kenyan Police

The Cabinet Secretary for Internal Security and the Inspector General of Police shall formulate further regulations on the use of firearms. They shall include regulations–

• that specify the circumstances under which police may carry firearms and the type of firearms and ammunition permitted;
• that prohibit firearms and ammunition that cause unwarranted injury or present unwarranted risk;
• to regulate the control, storage and issuing of firearms. This shall include procedures that ensure that officers are accountable for the weapons and ammunition issued to them. (In principle; don’t allow to take firearms home and officers are provided by their superior with a fixed amount of ammunition and have to explain at any time when requested if bullets are missing);
• for the selection, training and testing of officers authorized to carry firearms. This includes techniques that could defuse tension and reduce the likelihood of the need to use force in order to ensure that firearms are used appropriately and with the least risk of causing unnecessary harm;
• to provide for testing of officers carrying firearms at regular intervals, but at least once a year;
• provide for consequences when failing the test referred to above. This shall at least include that failing to pass the test shall result in losing the right to carry firearms until the officer does pass the test; and
• provide for a reporting system whenever officials use firearms in the performance of their duty.

Role of Superior Officers

Superior officers shall do everything in their power to prevent the unlawful use of force or firearms. When such unlawful use of firearms does occur, they shall report this immediately to the Independent Police Oversight Authority and to the Inspector-General.