Supreme Court clarifies proof needed for torture claims in killings by police

The Supreme Court has drawn a clear distinction between an unlawful police killing and torture, ruling that a fatal shooting alone is not enough to prove a victim was subjected to cruel, inhuman or degrading treatment.

The decision came as the apex court dismissed an appeal filed by the family of Pakistani journalist Arshad Sharif alongside two media organisations, who sought to overturn part of a Court of Appeal judgment arising from his death in Kenya.

At the centre of the dispute was whether Sharif’s fatal shooting by police officers amounted not only to a violation of his right to life but also constituted torture under the Constitution.

Sharif was killed in Kajiado County on October 23, 2022, after police officers opened fire on the vehicle he was travelling in. Authorities later termed the incident a case of mistaken identity, with the Inspector General of Police acknowledging that officers shot the journalist while pursuing another vehicle.

The High Court had previously ruled that several of Sharif’s constitutional rights had been violated, including his rights to life, dignity, equality before the law and security of the person. It further found that he had been subjected to torture.

That finding was later overturned by the Court of Appeal, prompting Sharif’s family and the two media groups to move to the Supreme Court.

In its judgment, the six-judge bench agreed with the appellate court, finding that the evidence presented did not support a conclusion that Sharif was tortured before his death.

“To subject someone to torture, inhuman, cruel, or degrading treatment ordinarily presupposes that the victim is alive and under the custody, control, or influence of his or her tormentor,” the judges said.

The court noted that parties alleging torture must place before the court evidence showing that a victim endured pain, suffering or degrading treatment before death. It added that medical or scientific evidence may be necessary depending on the circumstances of a case.

According to the judges, no evidence was produced before the trial court to demonstrate that Sharif experienced prolonged pain or suffering after he was shot.

“Even if it can be said that the fatal shooting of the deceased subjected him to torture, cruel, inhuman and degrading treatment, the appellants ought to have produced evidence to that effect. For example, that death was not instantaneous and the deceased was exposed to pain and suffering before succumbing to the injuries inflicted by the shooting,” the court held.

The bench said the absence of such evidence meant the claim of torture could not be sustained.

“No such evidence was tabled before the trial court, thus prompting the Court of Appeal to decline the invitation by the appellants to find as prayed. We are in agreement with the appellate court for the foregoing reasons,” the judges stated.

Even so, the Supreme Court maintained that the shooting amounted to a violation of Sharif’s right to life protected under Article 26 of the Constitution.

The judges said the circumstances leading to the journalist’s death were unconstitutional and also breached Kenya’s obligations under international human rights instruments, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.

The ruling is expected to guide future constitutional petitions by clarifying the type of evidence required where torture is alleged in cases involving fatal police shootings.