Shoot-to-kill Bill: MPs should guard the Constitution and do no harm

Kenya: Parliament reopened Tuesday to a crowded agenda. It includes the approval of members of a new House Business Committee; the tabling and discussion of the Supplementary Budget and Budget Policy Statement; revisiting the VAT Act to revoke the 16% VAT on some items; discussing rising insecurity; the approval of the National Flag, Emblem and Names (Amendment) Bill; and debate the Marriage Bill, the National Police Service (Amendment) Bill 18 of 2013, the National Police Service Commission (Amendment) Bill 17 of 2013, and the Protection Against Domestic Violence Bill.

All these are important issues for the wellbeing of the country. We, however, wish to single out the two Government-sponsored Bills relating to policing and ask MPs to give them due and special consideration as the consequences of not doing so would be rueful for the country both in the short- and long-term.

The proposals in the Bills before the National Assembly seek to, among other things, give the police powers to shoot and kill suspects, give the president powers to call into Kenya foreign police forces to quell any form of protests by citizens, and to restrict citizen expression and participation. The Standard published the detailed proposals in its lead story of Tuesday December 17, 2013.

This, to say the least, is unacceptable. It would be a draconian reversal of the gains made in police reforms so far and would undermine our Constitution.

Notably, the proposals were published before President Uhuru Kenyatta announced that the Kenya Defence Forces would carry out duties hitherto exclusively reserved for the police. They include fighting crime, specifically terrorism. The move, which the President announced on Monday December 9, 2013, as he unveiled the Nairobi Metropolitan Command of the military, could be viewed as usurping the duties of the police.

Publishing radical proposals on the police service soon after a move to mainstream the military in combating crime, inevitably raises many questions: What situation is the Jubilee Administration foreseeing that could require the legalisation of shoot-to-kill orders? Why would it ever become necessary for the country to seek foreign police intervention in our civilian affairs? Why is the Government so dreadful of citizen expression and participation? Why is Kenya’s democratic space shrinking by the day? Why are some people keen on breaching the Constitution?

Already, the National Assembly has passed laws that are deemed undemocratic and unconstitutional. The President, against better advice, has assented to them. Some of the said laws, including the Kenya Information and Communications (Amendment) Act and the Media Council of Kenya (Amendment) Act are now the subject of a court battle to establish their constitutionality. Thankfully, some of the proposed laws, like one aiming to cripple civil society organisations by drastically reducing their funding, were defeated before fruition.

The impression we get is that of a Government determined to control or curtail fundamental freedoms, especially that of expression, and possibly, return Kenya to the hegemonic days of single-party rule when the Executive controlled all policing roles. Regrettably, we see the proposed changes to policing in this light.

Among the contentious proposals in the Bills relate to the appointment and removal of the Inspector General of Police (IG). Section 12 of the National Police Service Act sets out the procedure for the appointment of the IG. The Police Service Commission is required to publish a national notice in at least two national newspapers requesting for applications for the Commission to consider, conduct public interviews, and shortlist at least three candidates and forward the names to the President for nomination.

The new proposals would amend this section eliminating the role of the Commission, any public call for application, interviews and publication of shortlisted candidates. The proposed process is that the President simply nominates his preferred appointee to Parliament, which may or may not approve the nomination. If Parliament neither approves nor rejects the nomination within 30 days, the nomination will be deemed to be approved— something very easy to engineer in a country like ours.

The current requirements that the IG can be removed from office if he seriously violates the Constitution or any other law, including the chapter on integrity, gross misconduct, physical or mental incapacity to perform functions of his office, incompetence, bankruptcy or any other just cause, have been rendered mute in the new proposals.

Instead, the fresh proposals vest such a decision on the President, who would receive petitions against the IG and decide whether or not to forward them to Parliament.

A key concern in the proposals is the blanket role given to the Internal Security Cabinet Secretary in matters currently reserved for both the Commission and the IG. The Government now desires that “the Cabinet Secretary may lawfully give a direction to the Inspector General with respect to any matter of policy for the National Police Service.”

Whilst this provision is contained in the Constitution at Article 245 (4), there is a clear caveat to it spelling out that “no person may give direction to the Inspector General with respect to (a) investigation of particular offence or offences; (b) enforcement of the law against any particular person or persons; or (c) the employment, assignment, promotion suspension or dismissal of any member of the National Police Service.”

Our position is that the drafter of the Bill left out this caveat thus deliberately giving blanket powers to the Cabinet Secretary to give the IG any instructions he fancies and this, we know, is inconsistent with the Constitution.

The law would interfere with the vetting of police officers; broaden circumstances for the use of firearms by the police; eliminate the powers of the Independent Police Oversight Authority to investigate complaints against the police; elevate property over life; and unnervingly embolden the Executive.

There is every reason to fear that Kenya is sliding back more than 40 years and, if the proposals were adopted, the image of an emerging dictatorship, despite unambiguous constitutional guarantees against it, would crystallise. Kenyans would be at great risk of a rogue police force, or worse, a rogue foreign police force, as safeguards installed in the Constitution to increase accountability for the police service would be dismantled.

In considering these proposals, we urge MPs to bear in mind that Government— and they are an important arm of Government— exists only for one reason: To do no harm.