The path towards institutional capture by President Uhuru Kenyatta started in 2013. Under the former President, Mwai Kibaki, whose attitude was to wait, see and then seldom act; institutions had more leeway to work independently. In 2011 legislation (the National Police Service Act, section 12) provided that the Inspector-General of Police (IG) would be appointed by the President, but only following a process of open recruitment by the National Police Service Commission (NPSC), involving public interviews. A short list of at least three was then to be submitted to the President for his final selection, subject to Parliamentary approval. But this was amended in 2014 to appointment by the President alone, subject to parliamentary approval. A court challenge failed – the provision mirrors the Constitution closely.
The Constitution was crystal clear about the role of the security agency heads. The role of the civilian authorities, particularly the President, in deciding who would be the leaders of these agencies was camouflaged. Then the mode of appointment, involving the National Assembly, is weak, as the Jubilee party rarely contradicts the President’s preferred choices (unless members’ personal interests are involved).
Another issue is the political expediency and patronage, and picking unsuccessful politicians and aspirants to head the various security dockets. And an omnipresent factor is appointing persons to offices based on ethnicity, usually from either Kalenjin or Kikuyu.
These tendencies have completely undermined the Constitution, Chapter Six of which established principles about the qualifications for office, and the associated, albeit rather weak, legislation.
The Constitution carefully sets out the objectives and functions of the police (Article 244): striving for the highest standards of professionalism and discipline, competence and integrity, prevention of corruption, transparency and accountability, compliance with human rights, and fostering relationships with the broader society.
Appointments, transfers, and promotions must be on merit, and reflect the regional and ethnic diversity of Kenyans (Art. 246 (3)). That role is to be supervised by the independent NPSC (Art. 249)), which also deals with disciplinary matters, requiring cooperation with the police itself.
More reforms were to be carried out within the police. They were to prepare the Service Standing Orders (SSOs), within 12 months, (National Police Service Act). The first Inspector General failed. The serving IG, Joseph Boinnet, launched the SSOs, but they remain on paper, with abysmal, if any, implementation.
The civilian authority, the Independent Policing Oversight Authority (IPOA), created by legislation not by the Constitution, was to be important in the achievement of the constitutional principles.
The Constitution also envisaged reforms of the other security agencies in accordance with the principles of protection of both territorial integrity and human rights. Unfortunately, all three services have failed, and have continued to fail to understand this doctrine.
Illustratively, the military was enlisted in October 2014 to restore peace in the former Northern Frontier District (NFD); according to the KDF Act, they were to report to the IG, and were subject to IPOA oversight as they were undertaking policing functions. But IPOA records and reports filed, show that the military did not respect the chain of command as provided in the law, nor were they penalized for violating human rights.
Reforming from Outside
The NPSC, IPOA and the Ministry of Interior and Coordination of National Government (MICNG), were supposed to work together in achieving reforms, within the letter and spirit of the Constitution. Unfortunately, they have signally failed.
These institutions were bedevilled by institutional turf wars. For example, the police recruitment case in 2014, showed the NPSC at loggerheads with IPOA; the latter petitioned the High Court to quash the former’s recruitment exercise. The judgment held that the recruitment was in violation of the Constitution which was designed to negate discrimination and nepotistic tendencies.
IPOA faced both internal and external challenges. These included the lack of strategic leadership at police levels, particularly their inability to comprehend the mandate of IPOA. Lack of co-operation by the police contributed immensely to the lack of fulfilment of the entire mandate of the IPOA.
Reforming the security sector from outside is next to impossible. Inept leadership, and the difficulty that civilians have in understanding the nature of security work, contribute to this. The hierarchical nature and respect for insignia (mysterious to outsiders) are also factors. However in reality, civilians, especially Human Rights Defenders (like the civil society-led Police Reforms Working Group), are more knowledgeable about security issues than the officers imagine.
The sad reality is that neither internal-led nor external-led reforms have been successful.
The NPSC vetting hearings’ focus was on finances (corruption) but rarely was any question asked about the human rights record of the officer. And the ‘vetters’ were themselves not above suspicion, some facing criminal or malpractice charges.
Failure from the Inside
Issues from inside included leadership challenges, lack of strategic focus and a failure to comprehend the simple logic of external oversight responsibility. Police were inconceivably anti-reform. And they prioritized housing, budgets, police posts and uniforms as reforms over accountability.
The culture of the police favours the use of police for political ends. In their perspective, police are part of the executive. Article 245 says that the Cabinet Secretary may lawfully give a direction (in writing) to the IG - on policy, and not about the investigation of any particular offence, enforcement of the law against any particular person or employment of any member of the service. But, by not disputing the role of the executive in setting policy choices, the police became subservient to the executive. Scenes of a Cabinet Secretary threatening politicians with arrest or purporting to illegalize public demonstrations are common: all contrary to the express provisions of the Constitution.
Systemic and structural problems afflicting the police have been deliberate and with the condonation or even support of the leadership. Frustrations of police reforms cannot be overcome by shuffling police officers, from one posting to another: some officers must exit the service.
An outsider IG, maybe from civilians with relevant strategic and policy management and practice, is needed to lead the reforms. Reforms cannot be left to conservatives or insiders. Police officers currently at the helm would rather pass the buck to either ‘a few rotten apples’ as they say, or to external accountability institutions such as IPOA. It seems clear that the Presidency has eroded the potential and actual independence of the NPS, which therefore is a shell of what the Constitution provided for. The Constitution has not been amended; but what the political elite in Parliament failed to change in the Constitution has been achieved through ordinary legislation, and actions.
Kenya does not need new taskforces, reports, or methodologies, but rather to implement what is already there.
There are several areas of dialogue that require attention: first, the future of the Kenya Police Service and the Administration Police as separate entities (something that the recently announced changes will partially address). This split is counter-productive. There have been problems of double procurements, double administration, double beat-and-patrol, and other overlapping functions.
A second point is whether Kenyans want to renegotiate the Constitution of Kenya, to include constitutional establishment of the IPOA.
While this author believes that the NPSC definitely is needed, the personnel and the commissioners require re-examination. The cat-fights pitting NPSC commissioners against the police leadership were unwarranted.
Constitutional provisions - including Article 241, which says that if the military cooperate with other authorities in situations of emergency or disaster they must report to the National Assembly, and they can be deployed to restore peace in Kenya only with the approval of the Assembly - need to be considered, and strengthened. Under both Presidents Kibaki and Uhuru, Article 241 has been violated. Under Uhuru, the military have been deployed haphazardly to deal with local or community policing matters, leading to wanton violation of human rights. It is a constant cause of the problems facing Kenyans, particularly the youth – with enforced disappearances especially.
Other issues that Kenyans should debate include whether we need to recruit over 10,000 police officers annually, bringing problems for the training curriculum, and accommodation at police colleges.
IPOA’s report on police housing showed that, when police are living within communities, community policing is helped, and crime is less likely. This view seems to have been adopted – but without the police being given enough money to rent adequate housing.
All organs of the State are supposed to be transparent in their dealings, such as the procurement of goods and services, but in reality are not. In purchases of security equipment, millions of US dollars are stolen. The Auditor-General’s reports over the years point to wanton waste of public financial resources. Opening up these dealings to public scrutiny could save the country lots of public funds.
Discussion of sanctions that may be imposed on police and other security agencies, by both their internal accountability mechanisms and external mechanisms, such as IPOA or NPSC, including for those who violate human rights require to be seriously discussed. Whereas courts have issued orders, including requiring the Cabinet Secretary to appear in court or even jailing senior officers in the Interior Ministry, none can be arrested since the police report to that ministry, at least in practice (despite the supposed constitutional independence). Stiffer constitutional penalties would assist in the professionalization process, rather than politicizing the police.
Evidently, police reforms, and the wider security sector reforms, as envisaged in the Constitution, are like a docked boat, showing motion, but no movement. Perhaps through some constitutional and legislative amendments, and changes of attitude, Kenyans could remove the anchor in the ocean that holds back the movement towards true transformation, and at last jumpstart it. Then this current generation (or at least their children) may reap the fruits of the Constitution they promulgated.