Stray bullets: New Bill could bring justice to victims’ kin

On the morning of July 15, 2013, Ms Peris Waithera was in her house in Nairobi’s Mathare slums, breastfeeding her one-and-a-half-year-old daughter.

There was commotion outside, in a section curiously known as “Nigeria” for its reputation as a drugs den, as police officers pursued suspected criminals.

But that did not bother Ms Waithera, 22. She was safe in her iron-sheet house... or so she thought. 

Moments later, something hit her in the back, followed by a sharp pain in the chest. She rushed outside to seek help, carrying her baby. But she did not go far. She collapsed and died, the baby crying by her side.

“It was around 9.30am. I think she was getting ready to go to the market where she ran a small business. She was breastfeeding her baby before they left,” Ms Jackline Wanjiru, a neighbour, said.

A postmortem by government pathologist Johasen Oduor indicated that she had chest injuries due to a single bullet from a low velocity firearm shot at far range. It was thought to have been fired from a police officer’s gun.

The tear-jerking fate of the young woman is yet another statistic on the number of Kenyans felled by stray bullets. And the numbers keep growing, with some expert estimates putting the victims at 200 a year.

On April 28 this year, for example, Mr Boniface Makau, 17, was shot as Administration Police officers pursued a suspected robber.

Bizarrely, the bullet that hit a Form Three student at Straight Secondary School in Nairobi’s Kibera passed through his body and killed another onlooker.

The teenager’s father, Mr Fredrick Mutua, said that his son was returning home from tuition accompanied by his elder brother, Bernard Muinde, and a friend when they heard gunshots at Biashara Street in the slums.

“An armed thug had been shot dead by two administration police officers as he tried to steal from a bar owner. He was inside the bar when he was shot and a gun was recovered from him,” Mr Mutua said.

He added that residents gathered to get a glimpse of the goings-on. For unknown reasons, the APs, who were waiting for a vehicle to transport the body, decided to shoot at the crowd.  “The bullet hit my son just below the left eye, exited behind his head and hit a man standing behind him, killing him, too,” Mr Mutua said.

Boniface’s mother, Ms Salome Nthenya, said she arrived at the scene and found her son on the ground with his books, which were in a polythene bag, still in his hands. “He was bleeding, but still breathing. We walked to the stage and took a bus to Mbagathi Hospital. But just as we arrived, he stopped breathing and the doctors said he was no more,” she said.

The Independent Medico Legal Unit (IMLU) — a governance, health and human rights non-governmental organisation — says at least 200 deaths by stray bullets are reported annually. The number could be higher as some cases are not documented.

RESPONSES TO ROBBERY

In general, statistics cited in “Guns, our security, our dilemma”, a 2014 IMLU report, indicate that 67 per cent of deaths from gunshot wounds were caused by law enforcers. The most common documented circumstances of shooting by the police were during responses to robbery.

The results indicated that out of all gun deaths, 259 were committed by robbers, 1,254 by police and five by friends or acquaintance.

At least 310 other deaths by bullets were undetermined. Licensed firearm holders caused the death of 21 people, according to the statistics.

But cases of stray bullets from police guns are an increasing concern. According to the Independent Policing Oversight Authority — a constitutional civilian body that oversees the work of law enforcers — most cases of death from police bullets are never properly investigated. 

“Sometimes, the same police station where the alleged shooting officer is attached is tasked to conduct the investigation. These officers shield their colleagues,” the authority chairman Macharia Njeru said.

He said the authority had often found it difficult to access crucial evidence: bullets from victims’ bodies and spent cartridges. “We receive complaints in thousands. Some cases would not be hard to prosecute if we had the co-operation needed from police station heads,” Mr Njeru said.

Take Ms Waithera’s case: despite IPOA officers being present at the postmortem on July 19, the bullet removed from her body was handed to the investigating police officer.

An officer who spoke to Sunday Nation in confidence said police officers suspected of a shooting can access the bullets and swap them. “It is easy to place a bullet from another incident into the investigating officer’s closet,” he said.

IPOA wrote to the then Starehe OCPD Samuel Anampiu asking for the file into the woman’s death and a list of officers who took part in the operation.

Director of Public Prosecutions Keriako Tobiko had given IPOA the greenlight to charge a police boss in the case, as it believed that the chief inspector shielded a junior officer responsible for the shooting from investigation.

After more than three months, IPOA issued a report alleging a cover-up. “The authority has strong reasons to believe the bullet submitted for ballistic examination was not the same one removed from the body during postmortem. Or if it was, it had been tampered with,” reads the report. 

In other cases, police officers are reported to have threatened or intimidated the families of the victims.

One such parent is Ms Consolata Wanjiku, whose eight-year-old daughter, Cynthia Waithera, was killed by a stray bullet in Nairobi’s Korogocho slums on September 25, 2013. She was in full school uniform.

“It was at around 4.45pm. She had just arrived from school, dropped her bag in the house and asked for Sh10 to buy chips at a nearby shop. She was shot as she was coming back,” Ms Wanjiku said.

She said nurses at Mama Lucy Hospital where the pupil was pronounced dead advised that the body be taken back to the scene of shooting. After the police “ignored the body for 18 hours”, Ms Wanjiku said, the family took it to Kariobangi Police Station the following day. The police took the body to City Mortuary where another round of frustrations began as the body was labelled unknown.

During the time the body lay on the ground, Ms Wanjiku said, police officers told her to accept the fact that the girl had died by mistake and to just bury her as no police officer would be prosecuted.

“One of the police bosses even told me that it would be risky to pursue such a thing and that the worst that could happen to the shooting officer was to get transferred. I did not even record a statement at any station as I feared I’d be killed, too,” she said.

Ms Wanjiku, a widow whose husband was shot by unknown people at the height of the 2007/2008 post-election violence, is still waiting for justice.  

According to the National Police Service, a police officer found to have caused death or injury to an innocent civilian by discharging a bullet carelessly is liable to prosecution. Police spokesperson George Kinoti said officers have in the past been prosecuted and even charged with murder.

“All officers are aware of the principles of handling firearms, as dictated under the National Police Service Act. They are, therefore, responsible for any harm caused when they do so,” Mr Kinoti said.

He said that after the reporting of such an incident, the Inspector General of Police is supposed to appoint an agency to conduct investigations and make recommendations, depending on the findings.

He said the process begins at the scene of the shooting, where an investigating officer is supposed to secure the scene for purposes of investigations, notify the next of kin as soon as reasonably practical, and secure the exhibits. He admitted that there is a likelihood the accused officer may tamper with evidence. But in such instances, the suspects may be charged with obstructing justice. 

Recently, Attorney General Githu Muigai acknowledged that there was a big gap in the investigation of formal deaths in Kenya. But the National Coroners Service Bill 2015, which is awaiting Cabinet approval before going to Parliament, could remove police officers from being at the centre of investigating such deaths. 

The AG said the country has never had a comprehensive formal death investigation system.

“Unlike now, where the police are supposed to investigate deaths in relation to crime and send results to magistrates for further action, the National Coroners Service will forward results of investigations to the office of the Director of Public Prosecution and the Inspector General of Police,” the AG said.

He said investigations become even more difficult when police are implicated — especially in cases of death in custody and extrajudicial killings.