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Amendments to Police Act should include input from officers, public

By Anyang Nyongo | July 14th 2013

By Anyang Nyongo

This week I want to take a break from the industrialisation issue and revisit an issue on which I have received substantial comments from the public. This is the ongoing debate on police reforms and whether or not the Constitution and the law should be changed to suit the Inspector General’s (IG) desire to amass more powers for himself to be more effective in providing Kenyans with security.

The general view from many Kenyans is that the framers of the Constitution created a commission to provide civilian control and oversight of the Police Service.

The Commission is there to ensure the command functions of the IG are carried out accountably and within the bounds of the Constitution.

The National Police Service Act goes further to provide the framework for the various operational and administrative responsibilities within the various branches of the Police Force. Hence any proposed changes to this Act should be the product of widespread consultation within the force before such proposals are presented to Parliament.  Andrew Franklin has sent me a long piece on this subject, which I would like to share with Kenyans. He says I am responding to the public notice dated June 21 which invited the public to submit written memoranda concerning the subject bills to the Commission for the Implementation of the Constitution (CIC) no later than close of business, Friday, July 5.

When I reviewed the proposed amendments to the two Acts enacted into law in 2011 and began comparing the new version with the original Acts, I noticed there were a number of significant policy changes to be found in seemingly noncontroversial and bland alterations in words or phrases that would not raise any concerns about the direction in which the National Police Service (NPS) will be heading if all of the amendments to the Principal Acts are enacted as a package.

For example Amendment 13 to Section 18 of the NPS Act 2011 inserts a new subsection (2) specifying that a Deputy IG is appointed for a five year term renewable for one additional five year term. Although I may be mistaken there was no discernible change in the IGP term of service and my concern is that subsequent “subsidiary” legislation may become necessary to correct this anomaly.

In effect the original intent will be reversed by stealth! To date the treatment of these two Bills by the media and the “usual suspects” has played out either as the old guard attempting to defeat reforms introduced in the Constitution of Kenya 2010 or as being necessary to “kick start” police reforms and also as being absolutely necessary as soon as possible to ensure internal security and public order.

I have already pointed out in my letters sent to the local dailies the absolute failure by the Tenth Parliament to implement its own legislation; billions of shillings were tossed without oversight at the dysfunctional, demoralised and completely disorganised legacy “police” agencies; the previously specified media outlets would not print these submissions. The country was lucky that there was no repeat of the 2007 election violence because we had no National Police Service on March 4. We still do not have the real force.

Amendment 18 to Section 41 of reference (a) inserts by law a member of the National Intelligence Service (NIS) into each of the 47 County Policing Authorities as an equal to the Governor and seemingly senior to the NPS representatives; NIS is mandated by The National Intelligence Service Act, 2012 to  act on matters  of national security with its command, control, reporting channels and funding being “national” rather than county.

In any case there are limitations on the scope of NIS activities domestically including prohibiting operations normally associated with The Directorate of Criminal Investigations.

Quite frankly, having submitted comments on the NIS Bill to the CIC, I believe any expansion of NIS functions should be done in the context of amendments to its Principal Act rather than in NPS (Amendment) Bill 2013.

As you may recall I also submitted comments on the KDF Bill 2012 and the NSC Bill 2012. The Nairobi Law Monthly published my comments on two of three essential security Bills; I participated in the KDF Bill stakeholders forum held at KIA on 21 May 2012.

The three Acts passed by Parliament on August 28 last year had previously been redrafted and many – not all – of my suggestions made it into the legislation ultimately enacted into law.

My point is, amendments to any security related legislation cannot be considered in a vacuum or without reference to the Acts seemingly not being simultaneously amended.

I question the utility and reasoning behind amending the NPS Act 2011 after only 18 months or so when none of its substantive and well thought out provisions have been implemented.

In fact the most egregious error in the NPS Act was the failure to include the General Service Unit (GSU) as a separate “branch” with a Deputy IGP. The GSU is uniquely Kenyan and can serve as the equivalent to the National Guards or State Militias found in the USA. The GSU can be the national reserve to support NPS elements stationed in the counties, as appropriate. The fact that this issue is beyond the parameters of the CIC solicitation for public views and opinions is somewhat troubling.

With respect I suggest that the CIC extend the deadline for public participation and also expand the scope of amendments to be considered; I am fairly certain that funds can also be found to support a “stakeholders” forum to introduce additional and/or review substantive  amendments to the NPS Act 2011.

Kenyans are therefore alert to what is going on. It is, of course, a healthy sign that those who are charged with implementing provisions of the law should reflect seriously and candidly on certain shortfalls of the law, which need improvement or change if the law is to meet it’s intended objectives.

But what usually worries those who want to see peace and security prevailing while liberties and rights are reserved is the immense powers that can be accumulated in one office or in the hands of top individuals in government. This is what tends to breed authoritarianism, the opposite of democracy.


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