COVID-19: Excessive use of force by State and non-state actors
National Human Rights Institutions across the Commonwealth have raised concerns about excessive use of force by police and security services, and by non-state actors, to enforce COVID-19 control measures. Examples of excessive use of force have included beatings, extra-judicial killings, torture and cruel and degrading treatment.
As at 27th April 2020, KNCHR had recorded:
- 117 complaints relating to COVID-19 pandemic from fifteen Counties with Nairobi having the highest number at 26.
- Of these 117, 78 were reported by males, 29 by females and 10 by group/organizations.
- Four of the complainants are persons with disability (physical, hearing and mental disability).
- 62% of the complaints processed were against the State while 38% were against non-State actors.
- 66 of the total complaints were against National Police Service, mainly relating to excesses in the enforcement of the curfew.
- These complaints seven cases of deaths caused by assault, torture and excessive use of force by the police.
Other complaints have included unlawful intrusion into private properties, acts of inhuman, degrading treatment or punishment, lack of respect for human dignity and denial of the right to health. KNCHR is continuing to process these complaints and undertake necessary interventions towards appropriate redress action where the violations have occurred. These actions include referring cases to the relevant authorities in line with their mandate.
The Kenyan National Commission on Human Rights has developed a useful checklist for NHRIs to use to when engaging government on the enforcement of COVID-19 control measures and quarantine.
- Pursuant to Article 59 of the Constitution, Section 8 of the KNCHR Act and Section 12 of the Prevention of Torture Act, Kenyan law enforcement agencies must adhere to the basic checklist on human rights and fundamental freedoms:
- THAT the bill of rights as encapsulated in our Constitution has not been suspended during this pandemic and every person is still entitled to his/her fundamental rights and freedoms. In the event of any limitation to any right, then the proper constitutional and legislative provisions as provided for under Article 24 of the Constitution and Part IV of the Public Order Act must be followed to the letter.
- THAT even in the event of limitation of rights, the freedom from torture, inhuman and degrading treatment is non-derogable and cannot be wished away by any person.
- THAT respect for human rights, Rule of Law and Access to Justice are critical and essential in combating the Covid-19 pandemic. All actors both State and non-State actors are hence bound by the tenets of our Constitution and the various regional and international human rights instruments which Kenya is a signatory.
- THAT all officers under the National Police Service are bound by the cardinal rules and principles of Article 238 and 244(d) of the Constitution to protect the rights of all and further the legislative obligations under the sixth schedule of the National Police Service Act and Section 14 of the Public Order Act on the use of force.
- THAT the Government directives on Covid-19 more specifically social distancing and reasonable distance between persons must be respected by all, including the police during arrests, crowd control and detentions.
SUHAKAM has released a statement expressing their deep concern about the conduct of arrests and detention of alleged offenders during the Movement Control Order (MCO), which is designed to limit the effects of Covid-19 on the population.
There is also concern from a number of national and international NGOs about the proliferation of hate speech against Rohingya refugees, which has prompted a number of organisations to write an open letter to the Prime Minister.
SUHAKAM has communicated with the enforcement agencies as they continue to make improvements on how these agencies carry out their tasks, and hopes the mitigation measures outlined below will be seriously considered for implementation in the immediate future.
For those under remand proceeding and charges:
- Alleged MCO offenders, minors and fake news offenders to be released on police bail and charged at a later given date.
- Where the offender is charged and unable to post bail, alternatives to cash bails may include bonds or non-cash bail; whilst alternatives for convictions and fines could include undertaking community services.
- Minors, women, persons with disability, older persons, those with chronic disease or under medical treatment should be prioritized for release. The same can be applied for those charged for minor offences or offences related to socio-economic circumstances (poverty) such as petty theft.
Approximately 30% of the prison inmates are un-convicted or pre-trial remand prisoners, should be given due consideration for release under special administrative directive. These include:
- Remand prisoners for minor, non-violent offences or drug users who pose zero risk to public safety and prisoners with chronic illness;
- Remand prisoners for socio- economic offences;
- Senior citizen prisoners with medical conditions, including mental illness.
Finally, SUHAKAM urges members of the public to play a most important role, by complying with the MCO and to fully cooperate with the authorities in efforts to combat the pandemic, for the health and safety of one and all, in this crucial time.
The Nigerian Human Rights Commission (NHRC) has collected evidence of the torture, degrading and inhuman treatment of the citizens by the various security outfits, and compiled a report of these violations (with evidence) which it has submitted to the heads of the various security agencies, and to the Presidential Task Force on Control of Covid-19.
In May, the NHRC released a report stating that it had received and documented ‘105 complaints of incidents of human rights violations perpetuated by security forces’ in 24 of Nigeria’s 36 states and Abuja, the capital. Of these complaints, were ‘eight documented incidents of extrajudicial killings leading to 18 deaths’.
In April, ActionAid called on the government and the National Human Rights Commission (NHRC) to instigate an investigation of incidences of harassment, torture, extortion and cruel and degrading treatment by security agents in the guise of enforcing lockdown order.
The Commission has demanded that action be taken to ensure accountability on the part of the security agencies, and is conducting monitoring to ensure action is taken on the report and its recommendations.
The NHRC has also noted a rise in the cases of domestic and gender based violence and rape and has issued an advisory note. The Commission is monitoring this situation to ensure that perpetrators are brought to account.
The Human Rights Commission has also issued out advisory note on the treatment of street children, to ensure their rights are protected and they are not unnecessarily exposed to Covid-19. Also street children are much more vulnerable to violence, abuse, prostitution and exploitation. The Commission has stated that children should be taken off the streets and cared for in accordance with the Children’s Rights Act 2003.
The South African Human Rights Commission (the Commission) has published a statement to remind members of law enforcement agencies that the fundamental human rights of everyone in South Africa, such as Freedom and Security of the Person and the right to life remain intact, even under lockdown conditions which have limited other rights.
The statement includes the following:
The Commission is aware of and is disturbed by footage circulating via social media depicting members of the South African National Defence Force (SANDF) and South African Police Service (SAPS) officials using force against people who fail to comply with lockdown regulations.
The Commission is aware of an investigation by the Independent Police Investigative Directorate (IPID) on the death of a 41-year-old man who was shot Sunday, 29 March 2020, while standing at his home’s veranda, during COVID-19 lockdown enforcement. The directorate confirmed that children aged 5, 6 and 11-years-old, were injured during the incident. The Commission has expressed their deep concern and is monitoring the situation carefully.
In addition, the Commission reminds members of law enforcement, both the SAPS and the SANDF that the fundamental human rights of everyone in South Africa, such as Freedom and Security of the Person and the right to Life remain intact, even under lockdown conditions which have limited other rights.
The Commission therefore urges our security forces to exercise greater tolerance and apply minimum force in the execution of their duties as has been urged by the President, the Minister of the South African National Defence Force (SANDF) and other leaders.
Human Rights Watch has drawn up several questions NHRI’s can ask of their governments regarding the restriction of liberty and use of force during the COVID-19 lockdown:
- Are emergency powers used in a way that is lawful, necessary, and proportionate?
- Are emergency powers time-bound and covered by legislative or judicial oversight?
- Is your government reporting any derogations (temporary suspension of performance of human rights obligations) to relevant treaty bodies?