The Government has drafted fresh laws seeking to restore shoot-to-kill powers to the police and restructure security operations in a manner that would curtail the rights and freedoms of Kenyans, including the possible return of extra-judicial killings.
In the alarming proposals, police officers will be empowered to open fire and shoot to kill while they are protecting property, meaning property will supersede the sanctity of life.
Further, in the new proposals, the President can apply to a reciprocating country for police officers to be sent to Kenya to assist in emergency situations. This means foreign police officers may be used in security operations on Kenyan soil.
In addition, a less independent inspector general of police (IG) is authorised to make regulations on the use of firearms and security equipment.
If the proposed changes are passed, this would amount to a major reversal of gains made on police reforms in the country so far, experts have warned.
The proposals attempt to increase situations in which firearms may be used and eliminates the powers of the Independent Police Oversight Authority (IPOA) to investigate complaints against the police.
The laws are contained in two Bills – the National Police Service (Amendment) Bill 18, 2013 and the National Police Service Commission (Amendment) Bill 17, 2013.
The drafters of the Bills seek to introduce legislation through the National Assembly that contradicts constitutional clauses and clips the wings of the IG.
These proposals are in total contrast to acceptable best practices contained in Article 3 of the United Nations Code of Conduct of Law Enforcement Officials. It states in part: “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.”
In short, the proposals from the Jubilee Administration seek to increase the Executive’s role over the police service and control in the independence of the National Police Service Commission (NPSC). This will severely undermine the independence of the office of Inspector General of Police, contrary to constitutional protections.
Use of firearms
“The use of firearms would be permitted for the purposes of protection of any property and to prevent people from escaping lawful custody,” said Independent Medico-Legal Unit Executive Director Mr Peter Kiama.
Police officers will also be allowed to use firearms in self-defense against the imminent threat of life or serious injury.
“These proposals are in breach of international standards relating to the use of firearms prescribed by the United Nations and must be rejected,” Mr Kiama said.
The drastic measures contained in the two Bills have far-reaching consequences and will result in sweeping powers being shifted back to police officers, politicians, and their Cabinet appointees.
If approved when National Assembly reconvenes from Christmas in February 2014, the new laws will restrict the NPSC’s powers provided for in the Constitution and remove various measures that currently provide for the transparency and accountability of police officers.
Passage of the proposals would mean the NPSC would lose power to hire its own staff. Additionally, the commission would be placed under the control of the Cabinet Secretary, now Mr Joseph ole Lenku.
Human rights organisations are concerned that if the proposals are adopted, the recommendations of the Philip Ransley National Task Force on Police Reforms report of 2009 will be swept under the carpet.
The Ransley report had highlighted concerns over police conduct including violence, extra-judicial killings, gross human rights violations, low-level of trust in the police by the public, and corruption and nepotism in the recruitment and promotion of police officers.
Of great concern to the Human Rights Watch are the proposals to increase situations in which firearms may be used, in breach of international standards.
Police officers are also concerned that the Executive is trying to seek control for appointments, transfer, and removal of officers within the service and may allow the return of political interference with their services.
“The proposed amendments are taking the powers back to the Inspector General and away from the NPSC. He will be answerable to the President and not the commission anymore which opens gaps for political manipulation,” said Mr Leslie Leskow, the Deputy Africa Director for Human Rights Watch.
Leskow added: “We are opposed to the sections which will take away the powers of the Independent Police Oversight Authority so that it has no powers to investigate complaints against the police.”
“We are diverting from the philosophy of the Constitution at a time we need to inculcate professionalism and accountability and establishing a service not a police force for Kenya,” said Mr Kiama, adding they had registered their objections with the parliamentary committee on Internal Security chaired by Mr Asman Kamama.
“The key pillars for policing are public participation, acknowledging the dual responsibility between the police and the public, improving police welfare and accountability while on duty, and, finally, delivering quality service to citizens,” Mr Kiama said.
He said they stood for the independence of the inspector general from political manipulation.
“The police boss must be accountable to the people, Parliament and to the NPSC,” he said, adding that the draft regulations on policing are with NPSC and should be shared with the public.
Efforts to get comments from the Attorney General over the proposals were fruitless as our calls were not answered.