On the night of August 22, 2014, a 14- year old girl was shot dead during a botched security operation. The operation was carried out by a team of 13 armed security personnel to flush out murder suspects, who were said to be hiding in a particular village.
The girl was, at that time, home sleeping with her two siblings. Two of the officers, one of whom was the officer in charge of the operation, fired their firearms that fateful night. The two were later charged and stood trial for murder.
The evidence before court was to the effect that five rounds of ammunition were fired by the two officers that night; the officer in charge fired two and the other officer three. The girl died as a result of two gunshot injuries, one to the head and another to the chest.
The law provides that any person or persons, who with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. Malice aforethought is defined as the intention to cause death of or grievous harm to another person or the knowledge that the act or omission causing death will probably cause death of or grievous harm to some person.
The officers told court that upon arrival at the house, they knocked at the door, identified themselves as police officers, commanded the occupants to open the door and put on the lights. That they knocked on the door three times, but did not get any response and then pushed in the door and it fell across, on the floor.
That is when they heard the sound of metal brushing against the wall and thought that someone could be armed with a machete waiting to attack them. The officers claimed to have heard a male voice shout “I will kill somebody”.
The officers allegedly warned the person to surrender himself, but the person refused to surrender and the officer opened fire in the darkness. It was dark in the house but the officer claimed that there was some movement of somebody running out into the darkness and then there was an eerie calmness.
To court, there were two main issues; whether the security officers were justified to use firearms during the operation, bearing in mind the circumstances on the ground and if, indeed, they had the intention to cause death.
To justify the use of firearms, the two accused content that there was a dangerous criminal in the house at the time of the incident, who threatened to kill somebody that night. The two also told court that the deceased was no ordinary girl of 14 years old. That she was five feet, three inches tall and had a big body and that she attacked them with a machete.
The two security officers testified to having heard a man’s voice speaking in Swahili and threatening to kill somebody. They, however, did not testify to having seen the said man as it was dark.
Point of contention
The deceased girl’s father, who, in reality, was the target of the operation, told court that he and his wife were not in the house at the time of the operation, but a long way from their home. This evidence was corroborated by the telephone printouts presented in court.
Court did not believe the two officers when they described the deceased as no ordinary girl. The postmortem report showed that she was a 14-year-old girl of good nutritional status and of slight physique. To court, the contention that she was unduly big to be 14, was not attractive.
The security officers also told court that the deceased swung the machete, while intending to cut one of them. Clearly, none of the officers saw the girl swing the machete in the darkness.
The officers, instead, testified that after the incident, they beamed the lights of a touch and that is how they saw the deceased having been shot and leaning on the wall with a machete besides her.
Court was of the view that no proper surveillance was done to establish who were in the house at the time of the operation. One of the officers is alleged to have done surveillance and established that the suspect and his wife were in the house on the night of the operation.
Court wondered whether during the surveillance it was established whether the suspect had children and where the children were staying. It was vital to establish this information before storming the house.
The law demands that a security officer makes every effort to avoid the use of firearms especially against children. Court observed that the deceased was a child of 14 years old. To court, there was no demonstrable effort used by the security officers to avoid the use of firearms.
There was evidence that the child was shot on the head and chest. If, indeed, she was swinging a machete as alleged, the security officers could have disarmed her either physically or by shooting her hand, but not shooting her on the head or chest.
The law was not followed
The two officers told court that they conducted the operation in darkness. Court observed that there was no evidence that they were wearing night vision goggles. The presiding judge wondered how they were able to see and identify their suspect at night for the purpose of arrest. The judge concluded that although the security officers had gone to the home with the aim of arresting the father of the deceased, they ended up killing his child.
It was submitted that the intention of the security officers was to arrest the father of the deceased in connection with a number of murder cases but not to kill him. It was, therefore, argued that the shooting and killing of the child was lawful and reasonable in the circumstances of the case.
To the judge, however, there was gross omission on the part of the security officers in their failure to ascertain who the occupants of the house were at that time. Court noted with concern that the occupants of the house that night were children. The law was not followed; the two security officers did not make every effort to avoid the use of firearms against those children. That omission was unlawful.
The law states that any person who by an unlawful act or omission causes the death of another person is guilty of manslaughter. An unlawful omission is one amounting to culpable negligence to discharge a duty tending to the preservation of life or health. To the judge, although the offence of murder was not proved, the evidence adduced before court proved the offence of manslaughter beyond reasonable doubt.
Reckless
In the case in question, the judge was satisfied that the two accused security officers were recklessly negligent in the act of shooting in darkness without establishing who the victim was.
The two were therefore found guilty of manslaughter and accordingly convicted.
In some jurisdictions, the unprovoked use of a deadly weapon such as a firearm is evidence of intention to kill. And that the deceased was shot on the head and chest, vulnerable parts of the body, would be further evidence of that in intention.
