The British ruled Kenyan by coercion—massive coercion. The police were established not to protect the people or their rights (as in most countries) but to subjugate and exploit them.
Coercion became the lasting British legacy to Kenya. Its presidents could rig the elections knowing that the police would keep the people under control, and under detention if need be.
The 2010 constitution attempted to make a fundamental break with that tradition of rule. It aimed to change the mission of the police (and other security agencies) by imposing on them the obligation to “comply with constitutional standards of human rights and fundamental freedoms”; “prevent corruption and promote and practice transparency and accountability”; “train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity”; and “foster and promote relationships with the broader society” (Art. 244).
In order to achieve these objectives, an independent Police Service Commission (PSC) was to be set up to recruit the police, reflecting the regional and ethnic diversity of the people—because in the past the top police officers had come from the tribe of the president. The Commission is also to discipline the police.
The original proposals were to abolish the administrative police—a notoriously oppressive force, first established by the British, targeting black Kenyans, and give the PSC the authority to recommend the appointment of the Inspector-General of Police (IGP).
The parliamentary select committee persuaded the CoE to retract from the abolition of the administrative police, give the right to nominate the IGP to the president, and remove the proposal to set up a police complaints authority (though one has been in fact set up). Consequently the provisions on the reform of the police are not as strong (and it has turned out, not so effective) as the CKRC and Bomas drafts.
However, the reform of the police was also a principal concern of the post-2007 election agreement between political parties, following the terrible atrocities committed by the police.
Despite giving the President the power to appoint the IGP, the constitution gives the police force autonomy in the discharge of its functions in respect of its operations and investigations and sets up an independent police commission to ensure competence, independence and neutrality of the police.
Since then much work has been done to reform the law on the police, leading to the National Police Service Act 2011 and National Police Service Commission Act 2011.
Even before these laws could effectively be implemented, the executive has proposed amendments which will wind-back the most critical and significant aspects of these reforms.
The National Police Service (Amendment) Bill 2013 and National Police Service Commission (Amendment) Bill 2013 have made rapid progress to the National Assembly and are scheduled to be debated on Tuesday next week.
The revised version of the amendment Bills (dated 16 July 2013) contain many more regressive and worrying amendments that were not included in the versions of the amendment bills that were earlier made available for public comment.
It appears that the legislators have tried to sidestep public input into critical aspects of the proposed law reform. There is every likelihood that they will be passed by a Jubilee dominated House—unless, that is, the Kenyan people, the victims of police oppression, take firm action and convince the government of their utmost opposition to the proposed amendments.
Police independence reduced We now point to serious problems in the new bills. The police service amendment bill significantly reduces the political independence of the police.
The PSC is now completely removed from the appointment of the IGP, leaving it to the President and Parliament. There is to be no advertisement, no public interviews, no independent short-listing of candidates who meet the criteria, no notice in the gazette.
The risk is the continued politicisation of the police and the lack of respect for the rule of law. The amendments will severely reduce role of NPC also.
The vetting of police officers will now become the responsibility of the Cabinet Secretary as well as the Commission: "the Commission shall, in consultation with the Cabinet Secretary, develop criteria and Regulations to guide the exercise of vetting of officers under subsection (1)".
This amendment reduces the politically impartial vetting of police officers. IGP’s independence reduced Another amendment will further reduce the independence of the IGP by removing the Commission’s role in investigating and deciding whether to recommend to the Parliament the removal of the IGP from office.
Under the current law, if the Commission does recommend this to Parliament, and Parliament agrees, the President will appoint an independent tribunal to fully consider the matter.
Now the proposal is to remove the investigation and recommendation powers of the Commission, giving them to the President. Undermining of independent command of the police Another proposal, that the IGP “shall be responsible for all matters relating to the command and discipline of the Service subject to the disciplinary control of the Commission” will adversely affect the independence of the command of the police.
“Independent command” or “operational independence” of the police service does not mean that the IGP may make all decisions by himself, without any oversight or accountability.
It means that the police service must have the autonomy to exercise impartial judgment in carrying out their duties. The IGP and the police service must have a high degree of professionalism and independence from political influences, act in conformity with the law and established policies, and operate on the basis of consent. They must take responsibility for their decisions and operations, accepting liability when required, and exhibit full transparency in decisions and openness to external scrutiny.
Politicisation of the police Another proposal will increase the politicisation of the police. Instead of the Commission, the “chairperson of the Council of Governors” will, in consultation with the Cabinet Secretary, issue and publish guidelines to be followed during the nomination, appointment, removal and vacancy of members of the County Policing Authorities (CPA).
The proposal will remove the provision on the functions of the CPA to “facilitate public participation on county policing policy”—a provision which normally improves responsive policing and police –public relations.
It is now proposed to remove the powers of the Commission to appoint special police officers and give them to the IGP and the National Security Council (which the government controls).
The Commission has to appoint all officers that the IGP requests, in contravention of Article 246(3)(a) of the constitution. The spirit of this proposal undermines the core work of the Commission, and the clear constitutional delineation of responsibilities between the Commission and the National Police Service.
Another proposal would establish a “Service Examination Board” made up of members directly appointed by the Cabinet Secretary and the IGP.
It will set examinations for the Police Service, as well as evaluate and certify them. It also includes “any other function as may be prescribed by Regulations”.
Yet again it would undermine the Commission, which has the function of recruitment (article 246 of the constitution), maintaining standards in the Police Service, and reviewing those standards (a provided in s10(1)(a) NPSC Act 2011).
Police Reserve It is proposed that that police reserve officers will be recruited by the Commission on the recommendation and in consultation with the IGP.
This leaves it to the IPG to decide whether there should be police reserve. It infringes the constitutionally assigned recruitment role of the Commission (Article 246(3)(a)).
The assignment of powers of recruitment to the Commission was an intentional move to establish an accountable policing system.
PSC’s recruitment functions further weakened An amendment will give the Cabinet Secretary responsibility for "developing regulations relating to the setting of standards of recruitment, training of police, and use of police services".
This will remove the professional discretion of the Commission, which (and we note that the Commission includes the Inspector-General and the deputies) should prepare the regulations regarding recruitment and training of the police.
Additionally, Article 254(4) of the Constitution sets out that the Cabinet Secretary may give a direction to the IGP (not the Commission) in relation to policy.
Dangerous changes to law on firearms It is proposed to give the IGP the power to make regulations on the use of firearms by foreign police services working in Kenya.
This is a very dangerous provision which allows the IGP power to decide any circumstance by which these officers can use lethal force.
Foreign police officers should be subject to all the laws and regulations of Kenya, and hence should follow the laws regarding use of firearms set out in the Sixth Schedule to this Act.
The proposed amendment would change regulations on when the police can use firearms, so that, as well as using firearms to protect a person from death or the imminent threat of serious injury, police officers can also use firearms to: protect property; prevent a person charged with a felony from escaping custody; and to prevent a person rescuing, or attempting to rescue, a person charged with a felony from custody. These amendments are unnecessary, dangerous and contrary to international standards.
The underlying principle of United Nations Basic Principles on Use of Force and Firearms is that intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
The current Act provides that police can use firearms to protect a person (including themselves) from death or serious injury – no further amendment is necessary.
If passed, this amendment alone would be a huge step back for Kenya, effectively unreforming the police. The violent history of policing in Kenya, from the police extrajudicial killings in previous decades through to the police shooting of a young, unarmed, mother last week, highlight the need for strict laws regulating when police officers can use firearms.
Less transparency and accountability A proposal for amendment would no longer require Police Standing Orders to be gazetted, and hence not available to the public.
Additionally, the proposed inclusion of a new subsection (2) and (3) would allow the Cabinet Secretary to classify information as "confidential" and “restricted”, which will reduce the transparency and accountability of police actions, and the transparency of police decisions.
Weakening of the Police Service Commission Turning now to the National Police Service Commission (Amendment) Bill 2013, it is proposed to delete the following provision: “keep under review all matters relating to standards or qualifications required of members of the Service” and replaced with “on the recommendation of the Inspector-General and approval of the Cabinet Secretary, develop and keep under review all matters relating to human resources policies of members of the Service”.
This would reassign the powers and mandate of the Commission to manage the human resources of the Service, to the IGP and the Cabinet Secretary, leading to government control over police leadership and “all matters relating to human resources policies” of the police, as the Commission can only develop polices on the recommendation of the IGP after the approval of the Cabinet Secretary.
This level of political interference with a public, impartial police service is highly dangerous. It is also contrary to the constitution as the power to “recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service” belongs to the Commission (Article 246(3)(a)).
Far from giving orders to the Commission, the IGP should make his contribution at the meetings of the Commission, of which he is a member.
The proposed amendment will limit the Commission to only hearing appeals on “disciplinary matters relating to transfers, promotions and appointments”.
This is unconstitutional – the Commission has the constitutional mandate under Article 246(3)(b) to “exercise disciplinary control over the Service”.
The proposal to limit the constitutional mandate of the Commission to exercise disciplinary control over the Service to merely developing and monitoring disciplinary procedures should be rejected.
The Bill would remove another critical function of the Commission, that of appointing its staff (which all independent commissions enjoy). Now the Commission would require the approval of the Cabinet Secretary.
This is another device to increase the executive’s control over all bodies relating to the police. It is also proposed to delete the Commission’s power to make regulations regarding the vetting of police officers, giving them to the Cabinet Secretary “in consultation with the Commission”.
The proposal goes contrary to article 245(4) of the constitution which limits the powers of direction of the Cabinet Secretary to matters of policy. It is necessary for the achievement of police reforms that the Commission remains independent of the government.
Otherwise Kenya would return to prior police practice which was characterised by political interference, corruption and excessive use of force.
In passing the constitution, the Kenyan people have called for two independent, powerful bodies the Commission and the National Police Service to ensure an accountable, democratic style of policing. Conclusion: Governance of Kenya The proposed amendments, soon to be debated by the National Assembly, point to a clear change of direction as far as the role of the police is concerned.
We began with a brief account of the constitutional conception of the role of the police, as defenders of the people, protecting their rights and ensuring security to them.
The police were to be professional and independent, holding the government officials as much as the general people accountable for their activities.
But the proposed amendments that we outlined here show a completely different conception of the police (that of a regime determined to use coercion to subdue its subjects).
That this is the project becomes clear from its defiance of the constitutional scheme for the management of the police service (the constitution introduced the idea of “police service” instead of “police force”).
Even the strengthening of the powers of the IGP is in the service of the government, not for the police management by its boss. Unfortunately this change of direction is all too congenial for the police, who even after the reform legislation, continued their brutal colonial habits, the latest manifestation of which is the officially proclaimed policy to shoot to kill those suspected of theft of or damage to property.
As President Kenyatta ponders over his style of governance, he has to decide whether he wants to rule the people by their consent, in accordance with democratic principles and practice, or like his predecessors, through reliance on colonial tactics of coercion.
In his speeches he has shown commendable commitment to the constitutional way. Let us hope, that in this the 50th year of independence, we can begin to see the rays of self-governance.
The authors are associated with the Katiba Institute and the Commonwealth Human Rights Initiative. They are grateful to their colleagues Alexandra Tindall and Sandra Ochola for their support in the preparation of this article.
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