Police Reforms: Africa
Police Reforms: Too Important to Neglect, Too Urgent to Delay

LAW REFORM: AN ESSENTIAL PART OF POLICE TRANSFORMATION

The price of freedom is eternal vigilance

For the first time in independent Kenya, a new government has come into power. We have moved away from totalitarianism, and this is enormously exciting, but we are not yet democratic. In fact, we are now in a "no mans land". In this cusp phase, Kenya could make the drastic changes necessary to ensure that democratic principles are entrenched, but we could just as easily slide back to repressive rule. It is important for Kenyans to bear in mind three significant points: first, experience from other countries that have gone through transitions like Nigeria, Ghana and South Africa, indicate that when a new government comes into power, a small window of opportunity, perhaps of one or two years, opens up where there is increased space for popular engagement with government to redefine the rules by which citizens will be governed. After that it's back to business as usual; second, most of the personalities in the new government were part and parcel of the old regime; and third, this government has inherited a legal framework designed to perpetuate and support despotic rule.

The Kenya police in particular, has been groomed to function as an armed defender of the establishment and not as a force required to render service to the community. Professor Yash Ghai, at a CHRI conference on police reform held in April this year, noted a "remarkable continuity" from colonial times to the present, in terms of the role and structure of the police force. The police now acknowledge that its main purpose for years has been to prioritize, above all else, the task of maintaining the patronage of the President and those in power. They accept that the public perception that the police force is brutal, corrupt, criminal, inefficient and politicized is to a large extent justified.

The legal community in Kenya has always been on the frontline, advocating for the return to pluralist politics and constitutional reform. Their achievements are commendable, but they cannot afford to sit on their laurels. The government and the Kenya Police are involved in developing an ambitious strategy for police reform. The aim is to transform the existing police force into a service that will be efficient, professional and responsive to the needs of Kenyans. For this objective to be realized, the legal fraternity must also be active in ensuring that the laws governing the function and structure of the police, as well as those they enforce, are radically overhauled.

The ongoing constitutional review process provides an early opportunity by which lawyers can help ensure that principles defining how law enforcement will be conducted in Kenya are enshrined. One of the main issues that must be addressed is the separation of police operations from undue political interference (for example, sections 24 and 108 of the current Constitution places the police squarely under the full authority of one person - the president of the country, and ensures that they remain subservient to him rather than to Kenyans generally). This can be achieved by establishing new channels for holding the police accountable, and by strengthening the existing ones. There is no statement in current law that imposes a duty on the government to provide a police service that focuses its resources to ensuring the protection and safety of all Kenyans. The new Constitution can correct this deficiency and in so doing, define the standard against which the police will henceforth be judged.

The new constitution should also guarantee that the head of the police enjoys security of tenure and that the procedures for appointment to office are designed to make certain that merit is the sole determinant for whomever gets the job. The procedures must be transparent, and subject to independent and impartial vetting, for instance, by parliament. Similarly, the new constitution should establish a role for Parliament in any attempt to remove the Commissioner before the conclusion of his or her term of office. South Africa requires that the President convene a commission of inquiry prior to seeking the removal of the head of the police force.

A good police chief is but a beginning. It is important that the new constitution also establishes an independent oversight mechanism that allows citizens from outside the government to participate in overseeing the functioning of the police force. This is not a novel idea. Various models of civilian oversight mechanisms have been established in Australia; Ireland; Nigeria; South Africa; the United Kingdom and the United States, among others.

Constitutional reforms are fundamental but broader legal transformation is key in bringing about an approach to policing that is consistent with democratic principles. Apart from the Constitution, the basic law governing the police is the Police Act (Cap 84). The police also have internal rules and regulations referred to as the Force Standing Orders and the Police Regulations, which are not accessible to the public. Then there is a plethora of legislation that the police are required to enforce. Many of these laws, like the Vagrancy Act, the Preservation of Public Security Act and sections of the Evidence Act, Criminal Procedure Code, and the Penal Code to name a few, date back to colonial times and were enacted with the sole intention of keeping the "natives" at bay. Both the Kenyatta and Moi regimes used these laws for the same purpose. They have no place in a society where the citizen is sovereign and must be repealed or amended.

The Police Act for instance, is too vague. It does not set out the structure of the police force, the procedure to be followed for complaints against the police or the rules for the use of force. The Act places no obligation on the police to make any reports to persons outside the chain of command, either on their activities, or their policies and strategies for the efficient carrying out of their functions. Any information on these above aspects can only be found in the Force Standing Orders and Police regulations, which are secret documents! The Police Act must be amended to clearly define the structure; role and functioning of the police, in accordance with internationally recognized principles.

The laws governing the administration of criminal justice likewise, bestow the police with very wide discretionary powers, especially in the area of arrests, search and seizure, and the use of force. Several sections for example, Section 82 of the Penal Code, dealing with unlawful assemblies, has the effect of assuring that the police can act with impunity. Thus, the police must make a proclamation for the peaceful dispersal of an illegal gathering but if this fails, the section grants the police the power to do all things necessary to disperse the groups and releases them from any liability incase of death or injury resulting from their actions.

The above is but a tiny illustration of the overabundance of legal and administrative procedures that have created and sustained a police force that is seen to be almost intolerable of the citizens. If this framework is still intact when the window of opportunity closes, the police force, an institution that is critical in ensuring enhanced security for deepening democracy and economic prosperity, will never become the professional and responsive service that Kenyans are craving for.

So whose responsibility is it to ensure that fundamental law reform takes place? The citizens of Kenya need champions. Lawyers have the skills, knowledge and the capacity to help bring about the crucial change needed in policing. If we stand still now, when this golden but fleeting opportunity is upon us, then the chance to ensure the establishment of a police institution Kenyans can be proud to call their own, will be lost and we will quite literally, be back to square one.

Michelle Kagari
The writer is an advocate and the Coordinator-East Africa, for the Commonwealth Human Rights Initiative Police Reform Programme.