By flouting summons over the recent disappearance of three Kenyans, convicted Deputy Inspector-General of Police, Gilbert Masengeli, didn’t break new ground.
He merely followed in the footsteps of a 50-year tradition that dates back to 1975, when senior police officers refused to appear before a parliamentary committee investigating the disappearance and subsequent murder of Nyandarua North MP, JM Kariuki.
Back then, as now, the security forces – shielded by their position within the executive – brazenly ignored the summons or went there to display their impunity.
In striking similarity to today’s unresolved disappearance of activist Robert Njagi and brothers Jamil and Aslam Longton, the police in 1975 defied the Elijah Mwangale-led Parliamentary Select Committee, but the Executive did nothing after Parliament adopted a report that named some of them as potential killers of the radical MP.
Those named included General Service Unit commandant Ben Gethi, Police Commissioner Bernard Hinga, and Director of Criminal Investigations, Ignatius Nderi.
The arrogance of the police leadership was further exemplified when the CID director, Nderi, boldly told the committee: “Hata wengine hapa mkimaliza katika kamati hii, ni lazima nitawakamata (“I will be arresting some of you once this committee finishes its work”).
Though Nderi was the most senior officer to appear before the committee, he appeared to be on a mission to intimidate them, the same way Nyandarua District Commissioner Stanley Thuo did. Thuo arrived before the committee armed with a pistol.
Five decades later, the parliamentary report on the disappearance of JM still reads like a manifesto on the institutionalised defiance of accountability within Kenya’s security apparatus.
As history repeats itself, Kenya, under President William Ruto, is facing a chilling reminder of how deeply this culture of police impunity is ingrained in the system.
In 2018, under President Uhuru Kenyatta, the IG, Joseph Boinnet, and Japheth Koome, then Nairobi County Police Commander, were held in contempt of court for ignoring a court order directing the release of activist Miguna Miguna.
Thus, Masengeli has followed the footsteps of Gethi, Hinga, Nderi, Patrick Shaw, and many others who have over the years defied the court and parliamentary summons with the unshakable confidence that there would be no repercussions.
Just like in the JM case, Kenyans have been treated to drama since August 23, as the judicial powers were tested when Justice Lawrence Mugambi attempted to have Masengeli appear before him. Finally, Justice Mugambi handed the absentee convict a six-month jail term.
“Deliberate defiance of court orders breeds impunity particularly when it is done by those entrusted with public power as it is inconsistent with the purposes and objects of the Constitution,” said Mugambi.
In passing the sentence, Justice Mugambi said he was “conscious that it is directed to the highest ranked police officer in this Country”.
He also knew that since Masengeli was still in office, that “might pose a challenge in the enforcement of the order since in police service, seniority is highly regarded”.
However, the judge ruled that such a dilemma “cannot deter me from pursuing and standing firm in the defence of the aspirations of Kenyan people who desired at the time of enacting this Constitution to have a country that is governed by adherence to the rule of law”.
After JM Kariuki’s disappearance and assassination, records show that while the Parliamentary Select Committee extended invitations to Vice-President Daniel arap Moi, Attorney-General Charles Njonjo, and Minister of State Mbiyu Koinange, only Njonjo and Moi attended.
Koinange, a key figure, “did not attend and did not send any apologies for his failure to respond to the committee’s written invitation”. That silence was contemptuous of the third arm of the government, an institution that had powers to carry out inquiries.
Koinange’s display of might was soon followed by the Israel-trained Gethi and Hinga. This group, with their combined power, operated with near-total autonomy, emboldened by their proximity to the executive.
Like in the Masengeli case, Mwangale observed that the police hierarchy chose non-cooperation over transparency.
“Mr Bernard Hinga, instead of regarding the committee’s work as complementary to its own… chose instead, from the very outset, the path of non-cooperation and a determined cover-up exercise,” Mwangale stated in the final report.
He also reported that Hinga’s attitude of obstruction trickled down to his subordinates, fostering a culture of resistance within the force.
Junior officers followed suit, either hiding behind the Official Secrets Act or refusing to disclose crucial information without permission from their superiors. Stated the report: “Police officers who had been connected with the investigation proved so hostile and uncooperative that a good deal of the committee’s time was wasted in investigating the investigators instead of the actual murder.”
The committee’s report described how Senior Assistant Commissioner of Police James Mungai was openly hostile and rude to the members. When Mungai later fell out of favour, after the death of Jomo Kenyatta in 1978, he escaped into exile fearing that his past might catch up with him. He came back silenced and timid.
There was also Thuo, who appeared before the committee armed with a pistol. As Mwangale reported, Thuo was in a “special class” and as he put it, “anaringa na kufura kama mkate.”
The fear is that the impunity is further extended to key witnesses who work with the police to defeat the course of justice or are intimidated from sharing critical information. For instance, in the JM case, the committee found that police had intentionally misled them regarding Pius Kibathi Thuo, a key figure in the investigation.
The police claimed Thuo was “out of the country”, yet, as the Committee later discovered, “he was to the knowledge of the police, all the time in Nairobi”.
CID director Ignatius Nderi had informed the committee that he believed Kibathi had placed JM’s watch at the Makongeni Police Lines, a crucial piece of evidence that was deliberately concealed. It was later found that this was a lie since Thuo was by that time in Kamiti Prison.
While the Committee unearthed several witnesses who testified seeing Gethi leave the Hilton Hotel with JM on the evening of March 2, 1975, alongside Chief Inspector Patrick Shaw of the Kenya Police Reserve, the witnesses had been intimidated and interfered with.
Both Hinga and Nderi refused to share witness statements pertaining to Kariuki’s disappearance and the Nairobi bomb blasts. When Hinga was summoned, he arrived with his private lawyer, Byron Georgiadis, who lectured the committee on Hinga’s powers.
After a lengthy time-wasting, Hinga allowed a sub-committee a chance to visit Nderi’s office for a cursory inspection of the exhibits. Nderi told them they could “look into the files but not read them.”
Despite protest from the committee, Hinga refused to compel Nderi to provide full access to the statements. As Mwangale later reported, they were only permitted to view the cover of the files, not their contents.
Thus, the investigation into JM’s murder was not only stymied by the police’s refusal to cooperate but an open obstruction at every turn.
“Police handling of the matter of the disappearance of JM during the week before the discovery of the body in the Nairobi city mortuary was farcical from start to finish,” the committee concluded.
Power was, however, short-lived. After Kenyatta’s death, Nderi was fired and replaced by Noah arap Too, who also defied court summons over the disappearance of a Kiambu farmer, Stephen Mbaraka Karanja, leading to an embarrassing fallout within the judiciary.
Gethi would end up detained after the 1982 coup attempt and fell out of favour. Hinga was also replaced and lost his might.
The same culture of impunity was shown after the disappearance and murder of Foreign Minister Robert Ouko. Police deliberately refused to cooperate or misled the Scotland Yard detective John Troon who had been invited to carry out investigations.
Years later, Troon reaffirmed that the authorities had “used corrupt and incompetent law enforcement officers to promulgate a campaign of frustration and interference with investigations”.
Later, Justice Evan Gicheru, who led another judicial inquiry had his room bugged and was asked to conclude the inquiry before he summoned key witnesses. Within two years of Ouko’s death, more than a dozen witnesses or accessories were also dead – including senior police officers who were used to cover up the murder.
For instance, Police Commissioner Philip Kilonzo, credited for crafting the Ouko suicide theory, died seven years after he was relieved of his duties and trappings of power. He was allegedly poisoned.
Though Masengeli is enjoying all the trappings of power, he risks becoming a case study of how unchecked power within the police force can erode democratic oversight and accountability. It also shows that the rule of law may not apply to some sections.
