Quote from Lawyer on June 26, 2025, 6:00 am

Protests are a fundamental expression of democratic rights, allowing citizens to voice dissent and demand change. In Kenya, however, protests have often been met with excessive force by law enforcement, leading to allegations of human rights abuses, including police brutality, unlawful arrests, and even extrajudicial killings. For victims of such abuses, the question arises: Can you sue the Kenyan government for human rights violations during protests? This article explores the legal options available to victims, with a focus on filing constitutional petitions and other remedies under Kenyan law.

Understanding Human Rights Abuses During Protests

Human rights abuses during protests in Kenya typically involve violations of constitutional protections enshrined in the Constitution of Kenya, 2010. Common abuses include:

• Excessive Use of Force: Police using tear gas, live ammunition, batons, or water cannons disproportionately, resulting in injuries or deaths.

• Unlawful Arrests and Detention: Arbitrary arrests without warrants or prolonged detention beyond the 24-hour constitutional limit.

• Torture and Inhuman Treatment: Physical assault, sexual violence, or psychological abuse while in custody.

• Extrajudicial Killings: Unlawful killings by security forces during protests.

• Violation of Freedom of Assembly: Dispersing peaceful protests unlawfully or denying permits without justification.

These actions violate rights guaranteed under the Bill of Rights (Chapter 4 of the Constitution), including the right to life (Article 26), freedom from torture and cruel treatment (Article 25), freedom of assembly (Article 37), and the right to security of the person (Article 29).

Legal Framework for Seeking Redress

Victims of human rights abuses during protests in Kenya have several legal avenues to seek justice. The primary mechanisms include:

1. Filing a Constitutional Petition

A constitutional petition is a powerful tool for addressing human rights violations. Under Article 22 of the Constitution, any person whose rights have been violated or are threatened can file a petition in the High Court to seek redress. Article 23 empowers the court to grant remedies, including compensation, declarations, and injunctions.

Steps to File a Constitutional Petition

• Identify the Violation: Clearly articulate which constitutional right was violated (e.g., right to life, freedom from torture).

• Gather Evidence: Collect medical reports, witness statements, videos, photographs, or media coverage documenting the abuse.

• Engage a Lawyer: Constitutional petitions require legal expertise to draft precise claims and arguments.

• File the Petition: Submit the petition to the High Court with jurisdiction over the area where the violation occurred.

• Seek Remedies: Request specific remedies, such as compensation, a declaration of rights violation, or an order for investigations.

Advantages of Constitutional Petitions

• Direct Access to Justice: No need to exhaust other remedies before filing.

• Broad Remedies: Courts can award compensation, issue apologies, or order reforms.

• Precedent Setting: Successful petitions can influence future government conduct.

Challenges

• Time and Cost: Litigation can be lengthy and expensive.

• Evidentiary Burden: Victims must provide sufficient evidence, which may be difficult in chaotic protest settings.

• State Resistance: The government may delay or contest claims vigorously.

2. Civil Suits for Damages

Victims can file civil suits against the government or individual officers for damages caused by human rights abuses. These suits typically claim:

• Assault and Battery: For physical injuries caused by police brutality.

• False Imprisonment: For unlawful arrests or detention.

• Negligence: For failure to protect protesters’ rights.

Civil suits are filed in the High Court or Magistrates’ Court, depending on the claim’s value. The Attorney General is usually named as the defendant, representing the state under the Government Proceedings Act.

Key Considerations

• Vicarious Liability: The government can be held liable for actions of police officers acting within their duties.

• Compensation: Courts may award general damages (for pain and suffering) or special damages (for medical expenses, lost income).

• Limitations Period: Claims must typically be filed within three years, per the Limitations of Actions Act.

3. Complaints to Oversight Bodies

Victims can lodge complaints with independent bodies tasked with overseeing police conduct:

• Independent Policing Oversight Authority (IPOA): Investigates complaints of police misconduct, including brutality and killings. IPOA can recommend prosecutions or disciplinary action.

• Kenya National Commission on Human Rights (KNCHR): Monitors human rights violations and can assist victims in seeking justice.

• Commission on Administrative Justice (CAJ): Addresses maladministration by public officers, including police.

These bodies provide an alternative or complementary route to litigation, though their recommendations are not legally binding.

4. Criminal Prosecutions

In cases of serious abuses like torture or extrajudicial killings, victims can push for criminal prosecution of offending officers. This requires:

• Reporting to Police: File a complaint at a police station, though this may be challenging due to police involvement.

• Engaging IPOA or DPP: Request investigations by IPOA or prosecution by the Director of Public Prosecutions (DPP).

• Private Prosecution: In rare cases, victims can initiate private prosecutions with court approval if public authorities fail to act.

Criminal prosecutions aim to hold individual officers accountable but do not directly compensate victims.

5. International and Regional Mechanisms

If domestic remedies fail, victims can explore international avenues:

• African Commission on Human and Peoples’ Rights: File complaints for violations of the African Charter on Human and Peoples’ Rights.

• UN Human Rights Mechanisms: Submit complaints to UN Special Rapporteurs on extrajudicial killings or torture.

• East African Court of Justice: Address violations of regional treaties, though its jurisdiction is limited.

These mechanisms are slow and require exhaustion of local remedies but can pressure the government to act.

Case Studies: Precedents in Kenya

Kenyan courts have handled several cases involving human rights abuses during protests, setting important precedents:

• Baby Pendo Case (2017): The High Court awarded KSh 7 million to the family of a six-month-old killed by police during post-election protests, finding violations of the right to life.

• Mathare Social Justice Centre Cases: Courts have ordered investigations and compensation for victims of police brutality in informal settlements during protests.

• Finance Bill 2024 Protests: Following widespread allegations of excessive force during anti-tax protests, constitutional petitions are pending in the High Court seeking accountability.

These cases demonstrate that courts are willing to hold the state accountable, though outcomes depend on evidence and legal strategy.

Practical Tips for Victims

1. Document Everything: Record injuries, arrests, or abuses with photos, videos, or witness accounts.

2. Seek Medical Attention: Obtain medical reports to substantiate claims of physical harm.

3. Preserve Evidence: Keep clothing, objects, or other items related to the incident.

4. Act Promptly: Adhere to statutory limitation periods for filing claims.

5. Seek Legal Aid: Organizations like Kituo Cha Sheria, ICJ Kenya, or private law firms offer support for human rights cases.

Challenges in Suing the Government

Suing the Kenyan government is not without hurdles:

• Impunity: Police officers often enjoy protection from prosecution or disciplinary action.

• Delayed Justice: Court backlogs can prolong cases for years.

• Intimidation: Victims may face threats or harassment for pursuing claims.

• Resource Constraints: Legal fees and access to quality representation can be barriers.

Despite these challenges, strategic litigation, supported by civil society and media advocacy, can yield results.

Conclusion

Victims of human rights abuses during protests in Kenya have viable legal options to seek justice, with constitutional petitions being a primary avenue due to their flexibility and potential for systemic impact. Civil suits, complaints to oversight bodies, and international mechanisms provide additional pathways. While challenges like impunity and delayed justice persist, successful cases demonstrate that accountability is possible with strong evidence and legal support.

For expert advice on pursuing a case, contact us today at +254 716 708 104 or info@lawguide.co.ke.