A section of civil societies have protested a proposed amendment on the Independent Policing Oversight Authority ACT to enable police ignore summonses.
A proposal has been made in the Statute (Miscellaneous Amendments) Bill, 2016, where the National Assembly intends to amend IPOA Act of Section 7(1) (vii) of IPOA Act, 2011.
The targeted section provides that the Authority shall have the power to – “Summon any serving or retired Police officer to appear before it and to produce any document, thing or information that may be considered relevant to the function of the Authority.
The proposed amendment seeks to amend the section by inserting the following immediately thereafter stating “provided that where the document, thing or information is privileged, the procedure for producing privileged document, thing or information shall be complied with.”
An official at the IPOA said they are concerned with the proposal as it touches on their core mandate.
Political activist Wainaina Ndungu said the word privilege has been discussed and as against public policy.
“This has been discussed and it was considered that Privilege as against public policy is personal to whoever it is conferred upon and can therefore be waived by the person in whose favor it is conferred,” he said.
“However, should the privileged information come into the possession of a 3rd party, the 3rd party can disclose it.”
The official at IPOA who asked not to be named said official privilege flows from the official status of a person.
It includes the privilege of judges and magistrates and public officers including police in connection with official information, the official said.
“An example is given that a police officer can claim privilege in court not to disclose his source of information. Accordingly, there is therefore no definition of what amounts to privilege information, document or a thing and the same is left for the Court to determine in the event of a dispute of non-disclosure.”
The official said they will oppose the proposals.
The official said the word privilege is prone to abuse by those under investigations as they may either divert, conceal or hide any crucial information sought that would have been of great help in the matter under investigations citing the same as privilege information.
The proposed amendment requires whoever seeking the said privilege information to follow a procedure for producing privilege information.
“This if allowed will give the suspects under investigations or their superiors an opportunity to subject the IPOA Investigators to their own version of procedures that are unknown in law and derail the entire investigations curtailing the course of justice.”
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IPOA is a state agency established under Section 3 of the Independent Policing Oversight Act No. 35 of 2011 (IPOA Act), with the object and purpose of among other things, holding Police accountable to the public in the performance of their functions.
IPOA has a mandate among other things to investigate any complaints related to disciplinary or criminal offences committed by any member of the National Police Service, whether on its own motion or on receipt of a complaint, and to make appropriate recommendations to the relevant Authorities.
The creation and establishment of IPOA is in the context of the history of the Kenya Constitution, to be part of the legal and policy agenda for transformation of the former Kenya Police Force into an efficient and accountable service.
Section 4 of IPOA Act was put in place to insulate the Authority from political and other interferences by decreeing that in the performance of its functions, the Authority shall not be subjected to any person, office or authority.
Section 4(3) of the IPOA Act further stipulates that every Government officer or institution shall accord the Authority such assistance and protection as may be necessary to ensure its independence, impartiality, dignity and effectiveness.
IPOA has in the past complained of experiencing various challenges in regard to carrying out its mandate under the law.
This is on the basis of orders by the Inspector General of Police not to deal directly with the Authority.
The IG has in the past instructed his officers not to accept any summonses, letters or any kind of communication from IPOA or to avail to any officer from the Authority any information without his express Authority.
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