The kind of police the Constitution envisaged

What are police for? The Constitution says how the police should do what they do (respecting human rights, with integrity, without corruption, professionally, and while fostering relationships – presumably good ones – with society) but not what they do.

The Constitution of Kenya Review Commission (CKRC) CKRC draft in 2002 said their purposes were: Ensuring a peaceful and safe environment, the protection of rights and freedoms, security of the people, prevention and detection of crime, supporting victims of crime and disorder, and protecting property. Quite similar provisions remained in later drafts, until the MPs meeting in Naivasha in 2010 removed it. Inexplicably, the Committee of Experts finalised the draft leaving us with a Constitution that tells us what defence forces are for but not why we have the police.

An early police commissioner in England set out a vision of policing often called “policing by consent”. It emphasises points such as, “the power of the police is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect”, and getting public support by “offering service and friendship to all members of the public without regard to their wealth or social standing” and using physical force only when persuasion and warning do not work and even then using only the minimum force necessary. It stressed that the police are simply “members of the public who are paid to give full time attention to duties that are incumbent on every citizen in the interests of community welfare and existence.”

It was never going to be easy to establish a police service that achieved anything resembling policing by consent in Kenya after the colonial experience.  Historians tell us that after the Second World War, the colonial police became more coercive in their approach, even before the excesses of the Mau Mau period.

But after Independence, the first presidents, too, used the police ruthlessly as a tool of government, and party, domination and oppression.

 

CONSTITUTIONAL DEVELOPMENT

The CKRC said that complaints of “police harassment, brutality, corruption and indeed complicity in petty and major crimes”, were very common from the public, who said they wanted police “who respect the citizens – and who can be respected by them”.

The Administration Police Service were especially criticised, and the CKRC recommended that they cease to be a separate entity. But the AP energetically wooed the National Constitutional Conference (Bomas) delegates, entertaining them at its barracks, and convinced them to change this provision in the draft.

The Waki Report on post-election violence recommended the AP be merged into the regular police. But the Ransley Task Force on Police Reform said the time was not ripe.

Faced with this disagreement, the CoE seems to have sought to do away quietly with the AP by recognising the Kenya Police Service only. Those MPs in Naivasha explicitly brought back the AP, though under an Inspector General, who also commands the Kenya Police Service.

 

RECENT CHANGES

With the major changes that were recently announced, the AP will have limited roles in future, as units concerned with the national border, stock theft, rapid deployment, and critical installations protection unit. They will no longer be the regular police anywhere, or the back up for what we used to call provincial administration.

The media have focussed on the (rather ugly) uniforms, but there is sense in this decision. While APs will no longer look like soldiers, no AP officer “merged” into the general force will have to wear a KPS uniform.

Another reform is to be the end of most official (and usually deplorable) housing for police. They will receive housing allowances and live in the community. This does some justice to the police, whom the Constitution unfairly excludes from some rights, including to housing.

The benefits of the new system are supposed to be greater clarity of command, greater efficiency, better relations with the public, better discipline and greater accountability.

THE RIGHT DIRECTION?

There have been many efforts to reform the police. Most of the institutional reforms do seem reasonable, and have been welcomed. Under the Constitution the National Police Service Commission (NPSC) was set up, while the Independent Police Oversight Authority (IPOA) was set up by law. There have been various other laws intended to improve the whole criminal justice system, including the police.

And the police have revamped their approach to “community policing”, and published last year an apparently sensible summary of how the police and the public can work together to enhance people’s security.

 

SO WHY THE NEGATIVE VIEW OF THE POLICE?

The dominant public view of the police is of a force (its old name) that gets away with murder, and fleeces a vulnerable public. A Transparency International 2016 survey found that about half those who had themselves initiated contact with police were dissatisfied with the outcome. Many people paid the police for services that were supposed to be free. When the police initiated contact, about a third of the people had paid bribes. Of people arrested, 70 per cent had not been told of their right to remain silent.

Recently, Father Gabriel Dolan wrote, “the area in which I live has recently witnessed mob justice, vigilante and police killings on such a scale that the environs should be declared a war zone. Yet a visit to the local station proved depressingly disheartening when top cops openly declared that they will continue to kill any young person they find carrying a crude weapon.” [??]

Something does not add up. Interestingly, the police published a “Strategy Framework” for implementing reforms over 2015- 18, which foreshadowed the recent developments.  It spoke of the need for common values among the various units before the KPS and the AP were merged further. It identified integrity, respect, diversity, teamwork, transparency, and accountability as among those values. This would surely elicit at best a hollow laugh from Kenyans. Respect is the last thing that those Kenyans who live in informal settlements (most Nairobians) feel they get from the police.

WHAT WE NEED

All these schemes and reforms will come to nothing if there is not the leadership from above that shows respect for all Kenyans. Shoot to kill orders not only urge violations of the law, but also demonstrate scorn for the ordinary citizen.

Secondly, while we would all understand that IPOA would take some time to get into its stride, by now, it should have been showing some better results. And it needs to relate better to the public so that they understand its limitations.

Thirdly, while institutional reforms are all well and good, operational law also matters. It is unfortunate that good changes to the law after the Constitution were rolled back by Parliament in 2014, particularly by allowing use of firearms to protect property (not only life and limb).

Fourthly, experience shows that law can be simply ignored. Did you know for example, that the Police Act still says that any force used by the police must be must be proportional “to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary”? When the police cause injuries they must provide medical assistance immediately and notify relatives or close friends of those injured.

Finally, we need the government to show that they realise that the police service is just that – a service for the people of Kenya, not a tool for a particular government to control the people of Kenya. The design of the Constitution was for the police to have a considerable degree of independence. Yet too often the executive seems to be ordering them to act. And changes in the law have placed too much power in the hands of the executive over senior appointments and dismissals.

More than assertions, by senior officers and politicians, of support for the police’s constitutional role is needed for Kenyans to consent to policing and to see the police as part of a common commitment to “community welfare and existence”.  

By JILL COTTRELL GHAI