Transformed criminal justice and law enforcement system is vital

By Ndung’u Wainaina

After many years of debate, a consensus has emerged identifying some five key areas necessary for successful transition to and consolidation of democratic rule.

These are the establishment of a democratic rule of law to legally guarantee citizens’ freedoms and rights, development of a free and active civic society, the existence of a relatively autonomous and valued political society, the existence of a democratic State bureaucracy, and an institutionalised economic society.

Further, there is a basic agreement that the fragility of the state exists whenever state structures lack political will and/or capacity to provide the basic functions needed for alleviating socio-economic deprivation, meeting development needs, and safeguarding the security and human rights of the population.

Hence, the stability of the country is dependent on creating a safe and secure environment, establishing the rule of law, achieving stable democratic governance, and sustainable inclusive economy and creating conditions that promote social wellbeing of the people.

Due to the fragility of Kenya’s transition, there is a growing consensus that traditional interventions and ‘business as usual’ approaches are no longer viable. Innovative approaches to promoting development require thorough integration with wider security, governance and legitimacy concerns. Kenya is in the throes of a severe democratic deficit and security crisis.

Democratic policing is vital to security and stability in a fragile and violence-prone society like Kenya.  It is also vital to broader governance reforms. Police reforms are therefore significant dimensions of democratic transition and crucial for democratic consolidation particularly in sustaining rule of law and constitutionalism. 

The legacy of authoritarian rule institutionalised the police force as the cornerstone of enforcing repressive laws and a cruel governance system. In re-establishing the rule of law in a post-authoritarian society, police play a critical role in protecting the rights of its citizens while exercising effectively the legitimate use of force as stipulated in the law.

The Kenya Police has historically acquired the reputation of endemic corruption, brutality and ineptitude even after enactment of the Constitution. The Commission of Inquiry into Post Election Violence (Waki Commission) Report has a stinging indictment of police. It accuses police force of “institutional failure, complicity and indifference to anticipate, prepare for and contain the violence”. It concludes that the effectiveness of the Kenya Police is hampered by “political expediency”. Those who cannot appreciate significance of this indictment are suffering from selective amnesia or are living in denial. It will be a grave mistake to go to elections with same police.

There is fear at the top ranks of the police over the likelihood of having an effective reform oriented civilian Inspector-General. Further, political elite notorious for exploiting the police for political objectives, is fearful of an institutionally and operational independent police service. This is a new era where policing is expected to be definitive, providing a clean break from the past and with a different ‘mindset’ and practice.

 The police force is an important element of civic-security relations as it is authorised by the law as an institution of armed coercion. Thus, the establishment of civilian control over the security agencies is vital to the consolidation of democracy.

Kenyans want a police service that invests in information and technology, and criminal intelligence to detect, deter and effectively respond to crime. They want to see a properly equipped police with the latest technology and equipment, well paid and housed. Police must be the custodian of rule of law, human rights and democracy and not a threat.

Kenyans pay tax so as to obtain the best public services and so the police should pay allegiance to the people of Kenya and the Constitution. The  police must also  demonstrate accountability and respect of the rights of citizens to regain public trust and confidence.  

The increasing failure of the criminal justice system to effectively deter offenders has been marked by a growing trend of taking the law into own hands. The growth of extra-state mechanisms of law and order demonstrate decline in confidence and the ability of the police.

There is a clear and crucial link between transition and the growth in crime rates. It would be dangerously simplistic to argue that crime is purely a consequence of the transition.  As change proceeds, society and its instruments of social control are reshaped. The result of this is the opening up of new areas for the development of crime, which are bolstered by the legacies of the past.

Crime is a threat to the stability of a new democracy and a deterrent to economic investment. It is implicitly and explicitly seen as a central test of the capacity of the Government to rule and the new democracy to consolidate. The transition has not brought with it a system of criminal justice that is immediately in a position to respond to this challenge.  Institutions of criminal justice remain weighed down by public perceptions as tools for enforcing the rule of the minority over the majority rather than instruments for delivering protection to all.

 The Government, with its desire to control the pace of police transformation and ensure that policing functions remain firmly in its control, has sought to retain policing as a central function, despite growing evidence that a centralised approach to crime control and prevention fails to take local problems into account. Centric policing controls undermine the establishment of clear accountability links between local communities and the police creating a perception that police remain unaccountable and unresponsive to citizens’ needs.

Ineffective policing has prompted creation of substitute policing institutions. The growth of private security industry and vigilante groups as alternative forms of policing outside of and uncontrolled by state authority is dangerous.

The writer is Executive Director, International Centre for Policy and Conflict