Why body searches by guards are illegal
By Nabutola Wanjala
A number of security organisations in Kenya now offer a kaleidoscope of services and products including in person guarding, alarm monitoring, transportation of cash, private investigation and provision of risk management.
In policing activities, one might assume that careful attention would have been paid to the legal framework within which these cooperative activities take place. Sadly, this has not been the case.
Furthermore, there is no legislation that deals with the registration, licensing, identification and training of private legal personnel.
There is little Kenyan legislation and even less in the common law that permits security guards/firms to wield specific powers.
From their activities, the security firms believe that they possess the same powers as police officers, to the extent that they had petitioned the then commissioner of police, Mohammed Ali, to allow them to fix alarm equipment on their vehicles, a move that the commissioner refused.
Nowhere in the Kenyan laws do specific ‘policing’ laws directly and consistently focus on the way that private security personnel are empowered to act or to be given immunity from civil/criminal suits.
In contrast, police have coercive and intrusive powers that are delineated in more or less clearly defined circumstances.
The Kenyan police are mandated to act to prevent the commission of an offence. This is clearly spelt out under section 14 of the Police Act, which states that ‘the force shall be employed in Kenya for the maintenance of
law and order, the preservation of peace, the protection of life and property, the prevention and detection of crime, the apprehension of offenders and the enforcement of all laws and regulations with which it is charged.’
This brings us to the question: Are security firms, through their servants, allowed to carry out searches on Kenyans? If so, under which legislation?
In 2010, the Minister for Internal Security came up with a draft Private Security industry Bill 2010 that sought to empower security firms to use firearms.
It also proposed the establishment of an authority to regulate the conduct of the security personnel. The Bill was never presented in Parliament.
Cap 84 of the Kenyan Laws that is The Police Act Section 2 defines a police officer to mean an officer of the force whereas the term force refers to the Kenya Police Force.
On the hand, the Criminal Procedure Code Cap 75, under Section 25 gives a police officer the power to search an arrested person and place in safe custody all articles, other than necessary wearing apparel found upon him. Section 26 of the same Act authorise a police officer, authorised in writing by the commissioner of police, to stop and search any aircraft, vessel or vehicle which there is reason to suspect has anything stolen or unlawfully obtained.
That being the case, it is important to evaluate if there are laws that allow a security officer, other than a police officer, to do a body search.
That was the question that ran through my mind as I underwent a fourth body search, in the same premise, but in a different shop in Nairobi.
It is instructive to note that Article 31 of our Constitution clearly states that a person has a right not to be searched either as a person, home or property.
However, when searches are done by private security officers it seems that from the face of it, the State has abdicated its role of providing security in public premises and delegated to persons who by law are strangers to the said functions of the police and thus violating the constitutional provisions regarding privacy and reasonable protection.
Even though the State may argue that it is reasonable to direct that private premises make local arrangements for security.
The issue of terror should not be used to justify the flagrant disregard of personal freedoms in the pretence of keeping security/peace especially in this era where grenades are being hurled into crowds.
The State should instead focus on prevention of terror by investing in intelligence, mass public education on issues of security and crime prevention ought to be complimented by other measures that are sure to enhance the overall security of the public rather than over relying on the body search.
Indeed the State is taking the issue of security lightly for in the past six months we have had six fatal attacks and even after the crimes there has been no successful prosecution. This just shows that from intelligence gathering, prevention and even apprehension nothing is worth writing home about.
Specific mention of the anti-terrorist unit must be made here for it seems Kenyans are losing their freedoms because a given police unit has abdicated its duty. Talk of double jeopardy; you are harassed by watchmen yet you still run the risk of a grenade bouncing off your shoulder.
The true position is that the public has been hoodwinked in the name of security into submitting to unnecessary yet crude searches affronting their person.
Furthermore, if this is linked to a private right reserving admission by the management, then the public should demand more dignified ways of being frisked by the management under what loosely will be a contractual basis such that should I be harmed while in their premises, my estate or I should be compensated.
This will be based on the logic that if the proprietors determine by their own means that everyone is not a security risk, then should the risk occur however remote but reasonably foreseeable, then they take responsibility and are to be held liable.
The writer is an Advocate of the High Court and an assistant legal officer with The Standard Group
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