Victim need not identify officer who shot him to win police brutality case, court rules

By  Rushdie Oudia

Correspondent

Nation Media Group

A police officer cannot escape accountability merely because a victim of a shooting during a protest is unable to identify the person who pulled the trigger, the High Court in Kisumu has ruled in a judgment that could reshape the pursuit of justice in cases of police brutality.

In a ruling that places the conduct of police officers under constitutional scrutiny, Justice Joe Omido awarded Sh3.5 million in general damages to a Kisumu resident who was shot during the violent post-election demonstrations that rocked Kondele in 2017.

On October 10, 2017, Mr Lucas Otieno Okuta was walking to his workplace when he was caught up in running battles between police officers and demonstrators in Kondele, Kisumu County.

He heard gunshots and ran into a nearby shop to seek shelter. As he entered the shop, he suddenly felt pain in his pelvic area and fell down.

Upon examining himself, he realised that he had apparently been shot in the pelvic area and was bleeding profusely.

He said he was unable to stand, walk or crawl and remained on the ground for several hours until an ambulance arrived and took him to Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) in Kisumu.

He was taken to theatre, where an operation was performed to extract a bullet lodged in his pelvic region.

Mr Okuta was left with a permanent disability, manifested by difficulty walking and severe pain. He said that, as a consequence of the injuries, he had been unable to resume work as a mechanic and welder, adversely affecting his livelihood and general well-being.

On September 1, 2022, Mr Okuta sued the Inspector-General of Police, the Cabinet Secretary in charge of the Ministry of Interior and Coordination of National Government, and the Attorney-General, alleging that members of the National Police Service had violated his constitutional rights and fundamental freedoms during the 2017 post-election demonstrations.

According to Mr Okuta, the shooting was unlawful and violated his rights to human dignity and freedom and security of the person, including the right not to be subjected to violence, torture, cruel, inhuman or degrading treatment or punishment.

Among the prayers sought by the petitioner were declarations that his constitutional rights and fundamental freedoms had been violated, an order compelling the Inspector-General to institute criminal investigations against the officers responsible, and compensation for the violation of his rights.

He also sought compensation for pain and suffering and loss of future earnings, costs of the petition and any other relief the court deemed just and appropriate.

The respondents, however, asked the court to dismiss the petition in its entirety.

The State argued that Mr Okuta had not adduced cogent evidence or eyewitness accounts directly linking the alleged shooting and resulting injuries to the Inspector-General or any identifiable officer of the National Police Service.

It argued that the petition merely attributed collective liability to the National Police Service and its command structure without establishing individual culpability or providing sufficient evidence linking any particular police officer to the alleged violation.

However, Justice Omido ruled that he did not consider the inability to identify the individual officer fatal to the petition, noting that the incident occurred during a rapidly developing confrontation between police and demonstrators.

“The Petitioner was, as per his uncontroverted account, seeking refuge when he was shot. In those circumstances, the evidential circumstances did not afford him a realistic opportunity to identify the particular officer who discharged the firearm,” said Mr Omido.

The court took judicial notice of reported instances during public demonstrations in which police officers had masked, veiled or otherwise concealed their faces, ostensibly to avoid being identified or recognised.

"In such circumstances, it would be unreasonable to impose upon a victim, caught in the midst of a rapidly unfolding police operation, an absolute requirement to identify by name or appearance the particular officer who fired the shot. A police officer cannot, by concealing his or her identity in the course of an operation, thereby insulate himself, herself or the National Police Service from accountability," said Justice Omido.

The judge stated that the use of firearms by police was not, in itself, unconstitutional, but that such force had to be lawful, necessary and proportionate to the threat faced.

The court found that Mr Okuta had proved, on a balance of probabilities, that his constitutional rights had been violated through the unlawful shooting and the subsequent failure to effectively investigate the complaint he lodged at Kondele Police Station.

On liability, Justice Omido said it was not necessary for the petitioner to establish that the Interior Cabinet Secretary or the Attorney-General had participated in, directed or authorised the shooting before the court could grant relief against them. He said the alleged violation had been committed by members of the National Police Service, a State organ exercising public power.

The judge awarded Mr Okuta Sh3.5 million in general damages.

“Taking into account the nature of the injury, the surgery and hospitalisation, the continuing pain and disability, the loss of amenities and the constitutional dimension of the violation, I consider a global award of Sh3.5 million as general damages to be fair and reasonable,” said Mr Omido.

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