MUNGIKI KILLINGS: KENYA NEEDS A POLICE COMPLAINTS AUTHORITY NOW.

POLICE KILLINGS: KENYA NEEDS A POLICE COMPLAINTS AUTHORITY NOW.
The greatness of an institution can be measured by the strength of its internal investigations." -Robert S. Mueller, III

The Kenya Police Force is a creation of the Police and the Administration Police Acts, Chapters 84 and 85 of the Laws of Kenya. The Commissioner of Police, a constitutional office holder, enjoys extensive statutory powers in the administration, discipline and superintendence of the force.

A glaring omission in the two Police Acts is the lack of a procedural framework for redressing citizen grievances against members of the force. Ordinary Kenyans have little or no administrative recourse against wilful or inadvertent transgressions of the law by police officers. Police Commanders have wide discretionary powers over issues relating to discipline and normally adopt a standard response that “the police are carrying out investigations” whenever they are faced with queries regarding wayward behaviour involving their juniors. This perfunctory response has become the euphemism for shoddy police services in Kenya. The events of the last two months have brought into sharp focus the ability of the police force to deal with excesses within its ranks. The months of May and June were marked by major security operations leading to the loss of over 100 lives with the police losing 12 of their own. We ought to salute these gallant soldiers for putting their lives on the line in the defence of public safety and security. The press has reported numerous complaints and accusations that the police killed and harassed innocent people in their bid to crush the Mungiki sect in Nairobi, Central Kenya and Rift Valley. Similar complaints have been made in Mt. Elgon where the police are battling the Sabaot Land Defence Force (SLDF) and in Kwale where they carried out an operation against members the Mombasa Revolutionary Republican Council (MRRC).

The provisions of the Criminal Procedure Code, the two Police Acts, the Force Standing Orders and the Police Code of Regulations, bind police officers in the discharge of their duties. In addition, every security operation is supposed to have specific Operational Orders (OPOs) or Rules of Engagement (RoEs) which must be strictly observed by every officer involved. These rules are intended to avert casualties and minimise collateral damage. Failure to observe operational orders may lead to unnecessary fatalities or casualties on both sides.

The Criminal Procedure Code stipulates that whenever a person dies in the hands of a police officer, a magistrate’s court or a police station commander should hold an inquiry to determine the circumstances that caused the death and whether an offence has been committed. The continuing public outcry and agitation by pressure groups could be an indication that these provisions are not being observed in respect of the victims of the recent police operations. Wishing away these complaints would be contrary to the spirit of the ongoing police reforms as envisaged in the Kenya Police Service Strategic Plan 2003-2007.

There is an urgent need to create an internal mechanism to check excesses and investigate non-compliance with standing orders and operational guidelines by police officers. The Kenya National Human Rights Commission (KNHRC) and even the recently created Public Complaints Committee (PCC) do not have the requisite capacity to discharge this function. Owing to their civilian character, these bodies do not have access to police intelligence reports and operational orders. Security operations are highly secretive in nature and civilians have no access to classified operational and logistical information.

The Commissioner of Police should invoke his powers under sections 4 and 5 of the Police Act and establish a specialised unit to handle complaints against police officers. The establishment of such a unit is contemplated in the Force’s strategic plan. Maj. Gen. Mohammed Hussein Ali should borrow a leaf from the United Kingdom, Canada, Australia and closer home, South Africa and create an Internal Affairs Unit or an Office of Professional Responsibility for the police. In those countries the Internal Affairs Unit acts as the guardian of the police force’s reputation. It is usually headed by a senior officer of excellent integrity who is directly answerable to the chief of police. Gen. Ali should create a special unit with the mandate to conduct comprehensive proactive and reactive investigations into allegations of corruption, serious misconduct and unethical and unprofessional behaviour against members of the force. The unit should also have the mandate to investigate alleged incidents of harassment, use of unnecessary or excessive force, use of language or conduct that is insulting, demeaning, discriminative or humiliating.

Police officers are entitled to certain rights like all citizens. An internal investigative division will provide procedural safeguards to ensure that all complaints are supported by sufficient evidence. The unit will entrench due process and protect police officers against punitive administrative action by superiors. The cases of the two General Service Unit (GSU) officers who were dismissed after an operation against the Mungiki sect in Murang’a North would have been investigated by the unit. Such a unit managed by peers can effectively adjudicate cases of administrative discipline based on investigations to determine if the allegations are truthful and recommend appropriate disciplinary action. This is because contemporaries who comprehend the exigencies of duty, the operating environment and attendant rules are usually more effective in the investigation of cases of professional misconduct.

Kenya is a nascent democracy with a vibrant private and public sector commercial enterprise. The country requires a police force that is committed to providing professional high quality service to all. The establishment of an internal investigative unit will promote the highest attainable standards of integrity, professionalism and accountability in the Kenya Police. The unit will be most effective if it is placed directly under the command of the Commissioner of Police. The Police Strategic Plan proposed the creation of a Police Service Commission, an Oversight Board and a Police Complaints Authority. Parliament has not yet passed the enabling legislation for the realisation of this vision. In the meantime, the KNHRC, the PCC and Parliamentary Committees can play the higher role of auditing and reviewing the reports of the Internal Affairs Unit to determine the efficacy of the Police Force’s internal disciplinary process. Public confidence will be strengthened by ensuring that allegations of corruption or misconduct by police officers are taken seriously, carefully investigated by skilled officers, and reviewed by an independent body.