Somalia’s leaders have agreed to hold delayed parliamentary and presidential elections by October 10 this year. The outcome will have significant ramifications for the country’s relationship with Kenya.

For decades, Kenya and the Federal Government of Somalia (FGS) have operated as reluctant allies drawn together by the realities of regional humanitarian and security challenges.

For example, Kenya hosts over 200,000 Somali refugees in Dadaab that have fled decades of drought, conflict, and terrorism. The government has sought to close the camps many times due to alleged security concerns.

But Somali leaders – including Kenya’s allies in Jubaland – have rebuffed efforts to expedite the refugees’ return due to insecurity and lack of resources, which is largely why Kenya has maintained its deployment of approximately 3,500 troops as part of the African Union Mission in Somalia (AMISOM).

The two countries have regularly taken retaliatory measures against each other in response to bilateral disputes. Somalia has banned the importation of the narcotic plant miraa from Kenya, which has cost its farmers millions of dollars. On its part, Kenya has at times stopped or hampered travel between the two countries.

Most recently, in December 2020, Somalia severed diplomatic relations with Kenya, alleging that Kenya’s growing relationship with Somaliland and interference in Jubaland’s political process amounted to undue intervention in Somalia’s domestic affairs. Qatar later mediated a resolution to the dispute, and both countries are implementing the agreement.

The election of a new national leadership in Somalia will offer an opportunity to develop a new common framework for cooperation to address areas of disagreement, including the fight against al-Shabaab, recognition of Somaliland, and delimitation of the maritime border.

Security cooperation

Kenya and Somalia’s disagreement over a joint border security strategy has harmed the security of both nations. Kenya has long sought for the bordering Jubaland region in Somalia to serve as a “buffer zone” of security led by a local ally. But it has used controversial means in an attempt to achieve this end, including military support to FGS rivals like Jubaland president Ahmed Madobe.

On the other hand, the FGS has wanted to maximize political and territorial control of Jubaland, particularly in Gedo where Madobe has less support. Constant infighting among local and national militias has hampered its stability.

The next Somali administration must address the sources of tension and agree on a security architecture that is acceptable to Jubaland, FGS, and the local communities.

Although Kenya invaded Somalia in 2011 without FGS consent and against the advice of key foreign partners, ultimately its forces have played a critical role, together with Ethiopian and Somali troops, to retake critical urban areas from al-Shabaab in the Jubaland region.

However, the prolonged nature of AMISOM’s mission – now 14 years – has created fatigue to conduct offensive operations. As matters stand, al-Shabaab still controls the entirety of the Middle Juba region and most rural areas, and it is still able to tax businesses in government-controlled areas.

Attacks by al-Shabaab on Kenyan Defence Forces (KDF) in vulnerable remote areas have killed hundreds and forced most troops to redeploy near the border, turning Kenya’s AMISOM contingent into a subsidized border force.

The KDF’s withdrawal of troops from conflict areas has made it more reliant on airstrikes that Somalis say indiscriminately harm or kill innocent civilians. These incidents undoubtedly diminish support for the KDF’s presence in Somalia and help al-Shabaab justify their existence to the local communities. It is for this reason that the FGS filed a formal complaint with the AU requesting that Kenya be held accountable for these actions.

The KDF’s increased border presence has also not stopped internecine fighting between Jubaland and FGS troops, which have continued to fight for control of the Gedo region. Local officials in Kenya’s Mandera County have complained that pro-Jubaland militias roam with impunity inside Kenyan territory, gathering resources to fight FGS forces on the Somali side of the border. The sporadic conflict has displaced tens of thousands of people, and the conflict has exacerbated the challenge of creating a sustainable security solution to the region.

Kenya, Somalia, and Jubaland need to reach a common agreement on security architecture for the region that better defines a timeline for the withdrawal of Kenyan troops and identifies which Somali forces will take over responsibility for security in each part of the region.

Relations with Somaliland

The next Somali administration will have an opportunity to reset relations with Somaliland and revamp a process that has been dormant since 2015 on an agreement that formalizes how the two sides will govern themselves in the future – either separately or through some form of autonomy within a federal system.

While Kenya has not officially recognized the breakaway region of Somaliland as an independent country, it has leveraged outreach to Hargeisa to pressure the FGS to compromise on critical issues.

Kenya will likely continue to take advantage of Somaliland’s dissatisfaction with the failure of the FGS to uphold aspects of previous agreements. Kenya and Somaliland have held sporadic talks between envoys, and Kenya is considering establishing a consulate in Hargeisa.

The KDF’s withdrawal of troops from conflict areas has made it more reliant on airstrikes that Somalis say indiscriminately harm or kill innocent civilians.

But economic matters might be the most robust incentives for Kenya to expand its relationship with Somaliland.

Since Somalia’s blockade of miraa imports has hurt Kenyan farmers, Kenya could leverage improving relations with Somaliland to get an export deal in a region where Ethiopia currently dominates the miraa market.

In addition, Somaliland’s new Emirati-financed port at Berbera will compete with Mombasa and Lamu to move cargo through Ethiopia and onto other destinations in East Africa. 

While Mombasa has established traffic at its facility at Kilindini, Lamu may struggle to attract new customers due to the depressed economic demand in South Sudan, Ethiopia’s reliance on ports in Djibouti and Somaliland, and ongoing security concerns in Lamu.

In this context, Kenya may need to reach trade deals with Somalia and Somaliland to maximize the amount of investment and returns tied to its domestic ports. Otherwise, there is a significant risk that China could seize control of the Kenyan ports where it has financed upgrades, as the government may not be able to pay back the high-interest commercial loans that were used to finance them.

Future of the maritime border

The fight over the demarcation of the maritime border between Kenya and Somalia has hobbled the bilateral relationship for over a decade. Both nations are fighting for a right to exploit rich offshore oil and gas resources.

Somalia has insisted that the border should be drawn as a diagonal continuation of the southeastern border while Kenya seeks a horizontal frame that would greatly expand the country’s maritime territory.

Somalia filed a case with the International Court of Justice (ICJ) in 2014. Just days before the last round of arguments this March, Kenya withdrew from further participation in the case after the court rejected appeals to delay the proceedings to bring in a new legal team. Kenya also had sought a Somali judge on the panel to recuse himself to reduce the risk of a biased decision in favour of Somalia.

Somalia’s legal team ultimately made its closing argument in the absence of its Kenyan counterpart. It may be years before a decision is reached due to the number of appeals filed.

In the interim, Kenya will almost certainly push for the next Somali administration to settle the matter out of court – an idea backed by the US and the African Union.

However, the FGS will have very little room politically to negotiate a deal out of court. Many Somalis already believe the ICJ will rule in their favour. Even rumours in May that President Mohamed Abdullahi Mohamed Farmaajo’s administration was considering an out of court settlement prompted a quick and forceful denial from his office.

Somaliland’s new Emirati-financed port at Berbera will compete with Mombasa and Lamu to move cargo through Ethiopia and onto other destinations in East Africa.

Even if Kenya loses the case, Somalia has few possibilities of enforcing the decision. The ICJ has no means to do so. Kenya has sufficient allies within the five permanent members of the United Nations Security Council that would object to any punitive action that would force Kenya to abide by a final decision.

As a result, there is no likely scenario in which a mutually agreed solution can be reached in the near term, and any attempt to do so could provoke a political controversy in either country.

Security cooperation

Kenya and Somalia must prioritize security cooperation over other bilateral matters because it has the most significant implications for both nations’ peace and economic progress.

In particular, the two governments need to convene a unique forum that includes elites from the Jubaland region, to regularly discuss the transfer of security from Kenyan forces to Somali troops and other border-related security issues.

To reach an agreement, both sides will have to compromise on key demands. The next Somali government may request that Kenya refrain from leveraging its relationship with Jubaland to interfere with its management of affairs in Somalia. And the FGS will almost certainly want Kenya to be more accountable for any civilian casualties incurred in security operations in the country.

On its part, Kenya will push the next government to open up miraa markets to Kenyan farmers and pressure new leaders to form a better working relationship with Jubaland so that they can use their collective resources to create a more effective buffer zone for Kenya on the border.

The urgency to resolve these issues should be high since there will be a short honeymoon period for the next Somali government that will be inaugurated in October.

What can be accomplished in the first year will have significant implications for how the leader of Kenya’s next government approaches the relationship following the country’s own general election in August 2022.

For decades, it has been documented that World Bank operations have advanced capitalist restructuring in the Global South, and that it is institutionally wedded to the language and ideology of neoliberalism: deregulation, privatisation, marketisation, and commercialisation. This institutional fixation with neoliberal ideology remains almost unchanged in the face of rapidly changing global economic and political circumstances.

The 2010s were set against the backdrop of the 2007/8 financial crisis, which posed a severe threat to neoliberalism. This decade also saw the coming-of-age of alternative economic models, in the form of the ‘developmental state,’ or ‘retro-liberalism,’ offered by the likes of China and Brazil. This has furthered the ideological challenge to neoliberalism. Yet, the Bank – rather than updating its economic doctrine for the 21st century – spent the 2010s transferring power into the hands of private capital, as it has always done. For example, its Maximising Finance for Development (MFD) scheme, one of its flagship policies of the decade, is presented as an innovative new way of financing sustainable development in the Global South. Though presented as part of the Bank’s rebranding as a ‘solutions Bank,’ ostensibly void of ideology, in practice it operates according to the same neoliberal logic long promoted by the institution.

This tunnel vision is guiding the Bank’s response to the Covid-19 pandemic, despite the potential for global economic transformation. That this commitment to neoliberal orthodoxy should remain steadfast, in the face of such challenges, suggests that the Bank enters the 2020s doing the same fundamental job it has done since the 1980s: transferring power to private capital.

The World Bank and Neoliberalism

Neoliberalism has not, of course, been the sole preserve of the World Bank. Since the 1970s the global economy has undertaken a process of capitalist restructuring, in which the fundamental tenets of a capitalist economy have been expanded: free markets, private property, exchange relations across society, and power shifts in favour of capital over labour (I understand neoliberalism to be essentially a project of capitalist restructuring, and that it should be understood in this context). This has been an almost universal phenomenon, yet the Bank has been crucial in advancing this programme in the Global South.

Since the late 1970s the Global South has become dependent on capital in the form of loans, contingent on neoliberal reforms such as tax cuts, lower regulations, lower financial costs, and privatisation of public services. Societies in the Global South have been profoundly reorganised as a result. I appreciate that this is not new territory for readers of roape.net, and it should be noted that much of ROAPE’s coverage of the continent in the 1980s examined in detail the consequences for African societies and economies of World Bank and IMF structural adjustment programmes (see the archive for back issues of the review). There has been no lack of critique of this neoliberal model, but dependence on Western capital, and lack of credible alternative economic models (since 1989 and the collapse of the Berlin Wall) has meant near ideological hegemony in international development. Without challenge, it is of little surprise that the Bank continued to vigorously promote neoliberal reforms in the developing world.

The landscape has, however, changed rapidly since 2008. Alternative economic models are being offered in countries such as China and Brazil. Neoliberal logic assumes the state, its regulatory powers, and ownership of industries, are impediments to free market efficiency. By contrast actors such as China and Brazil see the state as an imperative actor for directing capital towards appropriate projects. The ‘developmental state’, as this model is often known, is an active participant in development, not a bureaucratic frustration whose frontiers are to be rolled back. This model is sometimes also referred to as ‘retro-liberalism,’ for its similarities with Western models of the 1950s. As well as offering a viable alternatives to neoliberalism, more Southern actors – China, Brazil, India, Venezuela and South Africa, for example – are acting as development lenders and investors, reducing dependency on Western capital, and thus the associated contingencies.

This threat to neoliberalism’s ideological and geostrategic dominance rapidly accelerated following the global financial crash of 2007/8 – largely blamed on deregulation of global finance. The countries which had most embraced neoliberalism in the decades prior – such as the UK, where this blogpost is being written – entered a recession followed by a decade of austerity. By contrast, developing countries offering alternative, ‘retro-liberal’ models came out of the crash in a position of relative strength, having maintained high, if decelerated, growth rates.

Together this posed an existential crisis for neoliberalism. The model’s failures had been exposed in the West where it wreaked economic havoc and was subsequently rebuked from all sides; both right-wing and left-wing politicians attacked what was commonly labelled neoliberal globalisation. In some parts of the Global South alternative models were providing high growth rates and appeared to offer a preferable route for smaller developing countries. The capital dependency upon which the West had relied on in order to strong-arm neoliberal reforms on to the Global South was being weakened.

Sham reforms

In terms of the game, it would have made sense at this point for the World Bank to have adapted to remain relevant. Even the IMF appeared to recognise its limitations, in admitting that elements of the neoliberal project “have not delivered as expected.” Yet, the Bank’s adaptations to this new world in which neoliberalism was losing the ideational battle have been merely cosmetic thus far.

As early as 2012 there was talk of a “new strategic identity,” growing into a “solutions bank.” Arguably, one implication of becoming a ‘solutions bank’ is an admission that the Bank was previously not focused on perfecting solutions, but ideology. Was the Bank tacitly suggesting it would be repositioning itself at a further distance from neoliberalism?

If so, the Bank’s rhetoric did not match its actions. The flagship announcement of the 2010s, the MFD scheme, ultimately follows the same logic as its previous work in the Global South. MFD is described by the Bank as an opportunity to bridge the US$2.6 trillion per year gap between development aid and what is necessary to end global poverty. The Bank sees developing countries as a US$12 trillion ‘market opportunity,’ into which it seeks to attract private capital investment using subsidies and guarantees, and legal, policy, and regulatory changes. This sets up securitisation markets in the financial sector, and proliferates the use of Public-Private Partnerships (PPP).

In practice, this equates to the deregulation of domestic finance sectors, in order to incorporate global financial institutions and shadow banking institutions in the economy. Foreign investment is enticed through further deregulation of labour, land, environmental, and social laws. In other words, a wholesale reconfiguration of the economy in order to access private debt.

For example, in Indonesia where the MFD scheme is being used for geothermal exploration, the Bank seeks to use US$150m from the government, US$175m in concessional climate finance, and US$325m in Bank loans to unlock US$4bn in private capital investment to put towards geothermal exploration. The Bank itself provides “advice on how to structure the facility to align with the needs of the private sector.” Rather than Bank or state-led investment adapting to the needs of Indonesia’s energy sector, the Bank explicitly states that Indonesia must make adaptations to the needs of private sector investors. There are plenty of similar instances in Kenya and Nepal where MFD is underway, and the Bank states that “MFD is about prioritizing private sector solutions and optimizing the use of scarce public resources.”

Development is reduced, then, to being dependent on neoliberal reforms which expand the private sector and weaken the power of the state over its domestic economy. This is ‘development’ as a power-grab by global finance. The Bank’s reinvention of itself amounts to little more than becoming a private investment broker in developing economies.

Covid and the Bank

Today the world faces a fresh challenge to the neoliberal model, with the Covid-19 pandemic graphically illuminating its deficiencies. In particular, the reduction in state-planning capacity left countries ill-equipped for the logistical challenges the pandemic posed, with the so-called efficiencies of the market found wanting.

This has been particularly exposed in the distinction between the failure of the neoliberal West’s test, trace and isolate systems – which were often contracted out to the private sector – compared to those of Asian countries. Just-in-time supply chains and large supranational free trade areas and political bodies begin to look outdated in a world where borders are being closed and the nation-state confirmed as a real political and sovereign entity.

Public-private-partnerships have been a hallmark of neoliberalism, often supplying public services. These have been long-criticised, but the collapse in demand for some of these services during periods of lockdown has left some states with huge bills being paid to private companies just so they can maintain profit margins. The World Bank’s failure to produce data on exactly how much is being spent only serves to make it look like a shady racketeering scheme. Profit margins remain too sacred to be touched, whilst states will no doubt be forced to make cuts to public services in order to pay for them.

At the same time as the virus have ripped through communities and societies demand has increased for healthcare. In much of the developing world, public healthcare systems are underfunded and of poor quality, and much provision is private – again this is the legacy of structural adjustment programmes and reforms from the 1980s. The role of global finance, and its need for returns on investment, in funding private healthcare means that profit is often put before a universal quality of care. The result is grotesque health inequalities. Rather than a ‘great leveller,’ the pandemic shows that the greater role of private companies and global finance in healthcare systems results in higher death rates among those in a worse socioeconomic position.

Despite these fundamental flaws, inherent to the neoliberal model, the Bank has refused to change course. Of the World Bank’s initial US$14bn disbursement to mitigate the effects of the pandemic, US$8bn (57%) was channelled through the International Finance Corporation (IFC), the private sector arm of the Bank, representing an increase on its historic average of 17%. Of the IFC funding, 68% went to financial institutions rather than ‘real sector’ businesses, such as agribusiness, healthcare, and tourism; 50% of funding to these sectors went to companies that are, or are owned by, international conglomerates. Therefore, the Bank’s Covid response was primarily an exercise in rescuing global finance.

Funding allocated by the IFC to the ‘real sector’ continues to support this notion. To take one example, the IFC and the International Development Association (another arm of the WB) are raising US$4m in blended concessional finance (private investment) to support a project by Ciel Healthcare, Uganda’s largest private healthcare provider. Given the health inequalities inherent to the financialisation of health systems, this is not an optimum project for protecting Ugandans, which would be to improve universal public healthcare systems, rather than brokering private investment.

This is part of a wider trend in the developing world. Spending on public health briefly increased when the pandemic first surged, but the focus quickly returned to private provision, with the IFC announcing a US$4bn Public Health Platform with the explicit purpose of “support[ing] the private sector’s ability and capacity to deliver healthcare products and services.”

Taking other examples, an emergency Bank loan to Ecuador in May, the Bank demonstrates a commitment to the wider principles of neoliberal economics to stimulate economic growth. The loan was conditional on removing certain sectoral minimum wages and increasing exemptions for taxes on financial transactions. A loan to Nigeria’s energy sector in June last year was completed with the explicit purpose of de-risking investment for the private sector. In these instances, the Bank is acting to hand power to private capital, effectively making the success of Ecuador and Nigeria’s domestic economies dependent on the rampant desire for profits motivating global financial institutions.

These are not isolated examples. The Bank declared in one blogpost last year that its Covid-19 response is part of their “integrated approach to help mobilize private sector financing.” It goes on to discuss the central role PPPs will play in their future economic plans, despite the way they have locked in profits for private investors.

This is the future offered by the Bank. It continues to advocate for neoliberal reforms in the Global South even as this model faces, what would appear to be, an existential challenge. There remains the possibility in the long run that the Bank could fade into irrelevance as other international players, primarily China, reshape the global economy. But what is certain is that the Bank has entered the Covid-19 world with the same mission as it had in the 1980s: advance capitalist restructuring and push power into the hands of private capital.

On 1 August 2021, two brothers – Benson Njiru (22) and Emmanuel Mutura (19) – died in police custody in Embu in central Kenya. A few weeks later, John Kiiru (38) was “allegedly clobbered to death by officers” in Kayole, Nairobi. In both instances, the only crime the men seem to have committed was breaching the country’s curfew, which requires everyone (bar essential service workers) to stay indoors between 10 p.m. and 4 a.m. to help curb the spread of COVID-19. Kenyans are understandably in uproar about this tragic loss of life as reflected in local protests and social media commentary (#JusticeForKianjokomaBrothers), and statements by various civil society organisations and politicians.

Extra-judicial killings or executions (EJEs) by police and other armed security forces – such as the Kenya Wildlife and Forest Services – are commonplace in contemporary Kenya. As Peris Jones, Wangui Kimari and Kavita Ramakrishan noted back in 2017, “Though there is a glaring dearth of accurate data . . . there is a widely held perception of a spike in EJE during the mid 2000s in President Mwai Kibaki’s first term [2003-2008], then a relative decline in his second [2008-2013], before an upsurge since 2013.”

The spike in the mid-2000s is associated with a police crackdown on Mungiki – a much-feared ethnic militia – and the post-election violence of 2007/8 when the police are reported to have been responsible for 405 of 1,133 recorded deaths.

The latter triggered a series of police reforms, which sought to convert the police from a “force” with its roots in a colonial logic of control into a “service”, which would work for the Kenyan public. Most notably, these reforms established a clearer and more independent leadership structure, and an Independent Policing Oversight Authority (IPOA), which – despite limited resources and a lack of cooperation from police – has been able to investigate and successfully prosecute a number of police officers.

However, while these reforms have initiated some real change, they have failed to create a “service” and have instead gone hand in hand with an upsurge in police killings.

For example, between January 2013 and December 2015, Naomi Van Stapele estimated that in Mathare (i.e. in just one of Nairobi’s many informal settlements) at least one young man was killed by police per week on average. Over the same period, the Mathare Social Justice Centre lists 803 killings by police and other internal state security forces reported in the national newspapers.

Such everyday violence continued to be a reality during and after the 2017 elections. At least 92 people died in the wake of the first presidential election in August and around the fresh presidential election in October – “the vast majority executed by the police. More recently, 105 allegations of deaths and serious injuries at the hands of the police were lodged with IPOA between January and June 2021 – including 21 alleged deaths in police custody and 55 “from police action”.

These year-on-year numbers are shocking enough, but almost every report – be it by the media, civil society organisations, activists, scholars or IPOA – recognises that the numbers are likely to be a gross under-estimation.

At the same time, many officers do an incredibly difficult job with little thanks and at great personal risk, and sometimes show considerable restraint. Many also suffer from problems within the service. As Anneke Osse recognised in her 2016 article on police reform, individual officers are often “harassed, intimidated and denied their rights by other police officers”. However, the problem of extra-judicial killings is clearly more substantial than a few “bad apples”.

So how have limited police reforms gone hand in hand with such everyday violence?

The answer is two-fold.

First, and as Patrick Mutahi and Mutuma Ruteere have argued, the government has cherry-picked “what aspects of reforms to support and which to ignore. Most of the executive references to police reforms refer to increasing police numbers, salaries, and improvement of police housing and other hardware. In turn, little has been done with regard to the “software” or a police culture of unprofessionalism, lack of accountability and use of excessive force.”

This cherry picking reflects a lack of political will. As Anneke Osse explained, domestic and international pressure following the post-election violence of 2007/8 encouraged the political elite to “present themselves as reform-minded” and to “use ‘reform speak’”, but without the commitment required to ensure that this agenda was actually operationalised. In short, an association of political power with both wealth and status, and the deep involvement of many politicians in corruption and other illegal activities, ensures that “it serves the interests of the leaders of the executive to keep the police under their control and hold them accountable to the executive rather than to the public.”

At the same time, despite vocal calls for justice for particular instances of police abuse, there is, in general, limited public outcry or pressure for reform. This is the case even when the killings appear to be clearly extra-judicial or illegal; by Kenyan and international law, the police are only allowed to use lethal force in order to protect life.

This links to the second reason. There has been a delegitimization of protest or other activities that might foster tension or cohesion in the name of stability and development – what Nic Cheeseman, Justin Willis and myself have referred to as the rise of peaceocracy. This delegitimization, together with an underlying criminalisation of poor young men, has helped to demonize protestors, terrorists and criminals to such an extent that their unlawful murder can (at least in the eyes of many police and ordinary citizens) be regarded as justified and even necessary.

“It serves the interests of the leaders of the executive to keep the police under their control and hold them accountable to the executive rather than to the public.”

This reality of an often implicit, and sometimes explicit, justification of extra-judicial killings is evident when we look at the main victims – poor young men reported to either be alleged criminals, terrorists or protestors – and debates around the same.

The majority of police killings target suspected criminals with regular news reports such as the one of 28 August 2021 in the Saturday Nation, which detailed how police in Kisumu had “gunned down two people suspected to be members of a gang that has been terrorising the city dwellers during curfew hours.”

However, it is often unclear what threat to life the alleged criminals had actually posed at the time of their killing. In a recent piece for The Elephant, Stoneface Bombaa gives the chilling example of Ian Motiso, a known criminal, who, “On 9 August . . . sat down to take a late lunch at a kibanda in Mlango Kubwa, Mathare when a killer cop called Blacky passed by. Blacky took out his gun and shot Motiso down then and there. Just like that.”

Tragically, this story of extra-judicial killings is a common one: from a plain-clothed police officer filmed shooting two teenagers in broad daylight in Eastleigh in April 2017 to reports of alleged criminals shot in the back, or of guns, or other evidence of illegal activity, posthumously planted on their bodies.

However, while question marks surround the circumstances of many killings, and whether many of those killed had actually engaged in criminal activities, their alleged criminality appears to offer a sufficient “legitimating narrative that these young men embody an imminent threat to society at large and to police officers in particular.”

As Wangui Kimari summarised of the public response to the widely shared video of the Eastleigh execution of April 2017, “a majority of the newspapers framed their reporting of this incident in language that legitimized the actions of the police officer” and “a majority of the Nairobi residents interviewed in the media or speaking on twitter . . . responded in favour of the executions of these young men. A popular response was that the youths killed were “gang members” who “lived by the gun and so should die by the gun.”

A similar picture emerges when we turn to alleged terrorists. In 2011, Kenya invaded Somalia. As Abdullahi Boru Halakhe notes, “The intervention was a military exercise. However, once al-Shabaab retaliated with attacks on Kenyan soil, it was the police that responded to the “blow-back”. . . This response involved new abuses; it was also used to justify a relaxation of security laws that had been introduced as part of police reforms on the basis that they were inhibiting a ‘strong’ optimal response.”

Once again, the killings that resulted, whilst often illegal, have been justified on the basis that such “strong-arm policing is the best way to deal with ‘criminals’ and restore order.”

In turn, while peaceful protest is a constitutional right in Kenya, protests are often characterised by a degree of violence or disruption – such as looting, stone-throwing, road blockades or arson – and by police killings. As occurred just recently on 25 August 2021, when police allegedly shot a man while “repulsing protesters in Kahawa West”, Nairobi, who were demonstrating against kiosk demolitions in the area.

A popular response was that the youths killed were “gang members” who “lived by the gun and so should die by the gun.”

In a similar way to the very real threat of terrorism or crime, the idea that protests are violent, or are likely to become violent, is used to justify excessive force. As Wangui Kimari summarised of the extra-judicial killings that followed the 2017 elections, “The police were seemingly not troubled by the questions asked by some citizens and leading human rights organizations about the unconstitutionality of this violence, and, in fact, denied it initially. When they finally, through their spokesman, offered a response, they claimed that theirs was a measured reaction to ‘acts of arson and thuggery.’”

Critically, this idea of a “measured reaction” is used to justify excessive force, or to silence criticism of allegations of the same, in a whole range of situations. To give just one example, two weeks after the 2009 mission of a UN Special Rapporteur on extrajudicial killings to Kenya, “Two activists who had been particularly active in reporting on police death squads were murdered”, with suspicion quickly falling on the police. As the Special Rapporteur, Philip Alston, later noted,

The police response was a classic. The police revealed a dossier which indicted – who do you think? – the two people who had been killed. In other words they announced that after carrying out a thorough investigation they had concluded that the two persons who had been assassinated had, in the past, been involved in criminal activity, as demonstrated by an allegation that the car they were driving might have been stolen. So there was no focus at all on who actually killed them, or why. But instead the police resorted to their time-honoured technique of trying to blacken the reputations of the two persons concerned – on the assumption that if they could be painted as criminals, then their assassination or their killing would have been more or less justified in any event.

Ultimately therefore, these justifications of force against alleged criminals, terrorists and protestors help to explain how limited reforms have gone hand in hand with an upsurge in everyday police killings whether it be of a criminal, someone who broke a curfew, someone who protests against the destruction of their livelihood, or someone who poses a threat to those in power. As a result, extra-judicial killings serve to uphold a culture of impunity, undermine public trust in the police and further fuel a sense of exclusion amongst many Kenyans that only further fuels criminality and potential instability.

As Stoneface Bombaa wrote of Ian Motiso, the thousands of men (and it is likely thousands) who in recent decades have lost their lives at the hands of the Kenyan police when they posed no immediate and clear threat to life, “did not deserve to be killed by the people whom we expect to protect us.” This may seem obvious, but it is only when it is widely accepted that it will no longer be possible for the police and others to justify extra-judicial killings. And it is only when such action can no longer be widely justified that more meaningful reform will become likely and a colonial police force can finally shift into becoming a police service.