Kenya’s recently passed Security Act substantially increases police power while reducing civilian oversight.
Background
The Kenyan police are governed by the National Police Service Act, 2011. The head of the police, the Inspector-General, is a position created by Article 245 of Kenya’s constitution. The Independent Policing Oversight Authority Act, 2011, created the Independent Policing Oversight Authority, a board of civilians charged with monitoring the police.
According to Transparency International:
- The institution seen as the most corrupt is the police, which an overwhelming 95 per cent of respondents perceive as corrupt or extremely corrupt.
- Political interference, a lack of proper police oversight and high levels of corruption, combined with technical deficiencies have resulted in major weaknesses in the country’s police and security apparatus.
- The police are the public institution with the highest prevalence of bribery.
- Business executives interviewed within the framework of the 2013-2014 Global Competitiveness Report also perceive the Kenyan police services as unreliable to enforce the law, giving a score of 3.7 on a scale of 1 (cannot be relied upon at all) to 7 (can be completely relied upon), positioning Kenya at 102 out of 148 assessed countries (World Economic Forum 2013).
According to Kenya’s disappeared Report of the Truth, Justice and Reconcilation Commission
- The Commission finds that state security agencies, particularly the Kenya Police and the Kenya Army, have been the main perpetrators of bodily integrity violations of human rights in Kenya including massacres, enforced disappearances, torture and ill-treatment, and sexual violence.
- The police and the military forces are at the centre of Kenya’s history of gross violations of human rights. While other agencies of the state were responsible for historical injustices and gross violations of human rights during the mandate period, security agencies were both primarily responsible for many of the acts of commission documented in this Report, as well as the acts of omission (the failure to provide security) that allowed many of the violations committed by non-state actors to occur.
- The Kenya Police Force of today largely resembles the Kenya Police Force of the colonial period: narrow in out- look, unclear in mission and violent in tendency.
Key Changes
Three key pieces of legislation affect the police in the Security Act: The Penal Code, The Criminal Procedure Code, and the National Police Service Act.
- Previously the National Police Service Commission, established by Article 246 of the Constitution, chose three nominees from qualified applicants to serve as Inspector-General and forwarded those nominees to the president, who then selected a nominee to be vetted by parliament. Now, the president shall nominate the Inspector-General to be vetted by parliament (Clause 86, amendment to Article 12 of the National Police Service Act)
- Clause 95 of the Security Act creates the National Police Service Disciplinary Board, whose membership includes two members representing the Kenya Police Service, two members representing the Administrative Police Service, and one member representing the Directorate of Criminal Investigations. It’s unclear how or whether this board will interact with the civilian-run Independent Police Oversight Authority. And it’s quite likely this new board reduces the possibility of civilian oversight of police.
- Clause 12(2) and 64 (30F) (1) and 64 (30F (2) prohibit media and citizen journalists from publishing or distributing material or images that might “undermine” “investigations” or “security procedures.” To provide an example, it would be illegal to show images of police brutality or violence if such violence could be classified as a “security procedure.” For instance, distributing images of police harassing Somalis during “Operation Sanitization Eastleigh” could be considered illegal.
- Clause 15 modifies the constitutional requirement that arrested suspects must be brought before a court within 24 hours of being arrested (Article 49 [f] (i) & (ii)). Instead, it provides a method for police to hold arrested suspects for up to 90 days. 15 (10). This change threatens to return detention without trial, a feature of the repressive Kenyatta and Moi regimes.
- Clause 18 of the Security Act modifies the Criminal Procedure Code by creating a practice of supervising re-offenders. Here is what supervision consists of:
(1) A court may at any time direct that a person shall, whilst subject to police supervision under section 343 and at large in Kenya, comply with all or any of the following requirements, and may vary any such directions at any time—
(a) to reside within the limits of a specified area;
(b) not to transfer his or her residence to another area without the written consent of an authorised police officer in charge of that area;
(c) not to leave the area in which the person resides without the written consent of the police officer in charge of that area;
(d) at all times to keep the authorised police officer in charge of the area in which the person resides notified of the house or place in which he or she resides and provide his or her telephone and other contacts;
(e) to present him or herself, whenever called upon by the authorised police officer in charge of the area in which the person resides, at any place in that area specified by that officer.
- Clause 87 and 89 of the Security Act delete provisions in the National Police Service Act (Section 15 and 17) that permit any person—presumably a citizen—to petition the National Police Service Commission to “remove” the Inspector-General (Section 15) or Deputy Inspector-General (Section 17) from office. Essentially, civilian oversight over police administration has been reduced.
- Most residents of Kenya interact with the police under two circumstances: because of traffic offences and problems related to having a national ID. Higher punitive fines—set out in Clause 24, Clause 39, and Clause 40 of the Security Act—will govern these interactions.
Summary
Overall, the Security Act vests more power in the president; gives the police more power; and substantially diminishes civilian scrutiny of police actions.