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Independent Policing Oversight Authority says prohibition on tint does not apply to private cars

The Independent Policing Oversight Authority has criticised the impounding of private vehicles with tinted windows, calling it “completely erroneous and irregular”.

IPOA urged members of the public to report any incidences of “unlawful harassment, arrest, intimidation, demands for bribes and impounding of motor vehicles with tinted windows” to its offices for action.

A statement from the Authority’s chairman Macharia Njeru dated May 16 questioned the directive from Inspector-General of Police David Kimaiyo, who has insisted the ban on tinted windows applied to both private and public service vehicles.

On Thursday, the police boss said the ban applies to all vehiclesdriven on Kenyan roads regardless of who owns them or what they are used for.

“This is the law and it must be obeyed by everyone. It does not matter whose car it is. Even foreigners driving into the country must remove the tint from their vehicle windows if it is to be driven on Kenyan roads,” Mr Kimaiyo said.

However the Authority, which provides for civilian oversight over the work of the police, called for the directive to have legal backing.

“Rule 54 A (1) of the Traffic (Amendment) Rules 2009 provides as follows: ‘A person shall not drive or operate a public service vehicle that is fitted with tinted windows or tinted windscreen.’ As can be seen from the foregoing, this section of the law clearly specifies public service vehicles as the ones prohibited from use of tinted windows or tinted windscreens.

“It is therefore completely erroneous and irregular for the police to impound private motor vehicles on the purport that they have tinted windows,” read the statement.

“Indeed a public service vehicle is defined under Section 2 of the Traffic Act (Cap 403) to mean any motor vehicles which: is licensed under part XI to carry passenger for hire or reward; or plies for hire or reward or is let out for hire or reward; or is carrying passengers for hire or reward.

“The Authority wishes to reiterate that any directive which is not in compliance with the spirit and letter of the law amounts to an unlawful order. Section 51 (2) of the National Police Service Act clearly stipulates that police officers are not required to comply with unlawful orders.

“Consequently, there is no requirement for police officers to comply with the directives attributed to the Inspector-General of Police.”

The directive by the IG has drawn opposition, with the Law Society of Kenya saying Mr Kimaiyo’s “decree and declaration” was unlawful and could not be enforced in any court of law.

LSK offered to defend any person whose private motor vehicle is impounded by the police on account of tinted windows.

“A very dangerous culture is creeping in our institutions where persons holding public office disregard the law and make illegal public pronouncements. This is an affront to the constitution and must be arrested forthwith.” LSK chairman Eric Mutua said on Friday.

RISING TERRORISM THREATS

Joseph Gathua removes tint from his car windows on May 14, 2014 after the Inspector-General of Police issued a directive banning vehicles from having tinted windows.

Joseph Gathua removes tint from his car windows on May 14, 2014 after the Inspector-General of Police issued a directive banning vehicles from having tinted windows.

Mr Kimaiyo’s directive came in the wake of rising terrorism threats in the country, with police urging extra vigilance by members of the public, ordering screening of passengers on all matatus among other measures.

In this regard, the Independent Policing Oversight Authority said: “The Inspector-General’s directive was ostensibly aimed at dealing with the current terrorist threats facing the country. While it is not in doubt that the country has of late experienced a hitherto unprecedented surge in the wave of crime, including various acts of terrorism, the Independent Policing Oversight Authority would like to reiterate its firm view that the only way to deal with crime is through the rule of law…

“The manner in which this directive was issued and the manner in which the police have commenced its implementation certainly does not meet the Constitutional threshold of professionalism and accountability required of the National Police Service.

“Such an abrupt and unclear operation only perpetuates the image of the police service as untrustworthy and perpetuates corruption as members of the public are forced to part with bribes to avoid being arrested or detained in unclear circumstances by the police.

“The rule of law primarily requires that all laws being implemented be clear both to the members of the public and the law enforcers. Where instructions to the police are vague and not backed by any law as in the present circumstances, the same is prone to abuse as has been experienced and reported by the public…

“Ultimately, IPOA would wish to encourage members of the public to report any incidents of such unlawful harassment, intimidation, demands for bribes and impounding of motor vehicles with tinted windows to its offices for action.

“The public should however be properly advised of the requirement of Rule 30 (1) of the said Regulations which prohibits the use of any material which has, or is capable of having reflective properties.”

-Nation

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