Mars Group Blog

Colleagues eventually traced the three Kenyan civil society activists arrested and beaten outside Parliament buildings yesterday after a nighttime search. Philo Ikonya was released from Gigiri Police Station last night at about 11 pm. Fwamba N.C Fwamba spent the night in custody at Gigiri Police Station, while Patrick Kamotho was held overnight at the Central Police Station. All three were charged this morning at the Chief Magistrates Court (High Court buildings Nairobi), Thursday February 19th 2009, with taking part in an unlawful assembly. The court has yet to release them (as of 12 noon Thursday) but they have been provisionally given a cash bail release of Ksh Ten Thousand each, which their colleagues are making arrangements to pay to facilitate their release. They will need legal and moral support as they face these charges and also require medical attention after assault by senior police officers while in custody. The Central Police Station briefly detained Gacheke of Bunge La Mwananchi after the disappearance of Philo, Fwamba and Kamotho before being released without charges.

The Partners for Change Philo Ikonya, Fwamba N.C. Fwamba and Patrick Kamotho who were arrested earlier are yet to be released. We have received information that Patrick Kamotho is held at The Parliament Police Station and is not allowed to be seen by friends and relatives. Philo Ikonya’s clothes were ripped off and the police have refused her access to clothing.

The three were earlier assaulted by the Central Police Station Deputy OCPD, the same officer who brutalized Activist Anne Njogu in 2007. Their Lawyers had earlier requested for P3 (assault complaint) Forms at 4.00PM but were denied on assurance that the forms will be given at 6.00PM. This is to show that the police cannot take any decision for possible urgent medical attention.The Police do not intend to release the Partners for Change according to their Lawyers.

As we went to Press we have eye witness information from Mwalimu Mati that Philo Ikonya has been sneaked out of Central Police Station. She Shouted out to him ” Mwalimu, they are taking me away”. Her whereabouts are now unknown.

The Partnership for Change is incensed by the numerous arrests that are going on especially when activists are going out in the public to demand for the reinforcement of the Laws that our Constitution provides which are fundamental human rights as recognized by international human rights legislations and domesticated by the Government of Kenya.

Click here to here to see over 1,200 media mentions of Police Brutality and Violations against Fundamental Human Rights of Kenyans by the Kenya police for the period January 2008 – January 2009.
Electronic Media
Print Media

The activists were amongst other Kenyans hoping to grab the attention of Minister for Agriculture, and Finance Minister, to act and prevent more deaths of Kenyans who are being affected by hunger and starvation which is threatening more than 10 million Kenyans.

Grand Coalition Government Unable to deliver the National Accord
Processions over the lack of food are not illegal as the people who were demonstrating were speaking on behalf of the many Kenyans that are going hungry today. It is ridiculous to see the kind of treatment the government is giving to the defenders of fundamental human rights such as the right to food and other very basic commodities essential to protect the poor and hungry from starvation caused by an irresponsible Government and Corrupt members of Parliament.

This government through its Law enforcement Officers has demonstrated that it is unable to handle the governance issues that it is responsible for creating and that it should step aside and pave the way for fresh elections to be held in order to offer alternative leadership for this country.

By and large the Partnership for Change recognizes that most Police Officers are good, decent and honest Kenyans. The problem in the Police Force is at the top, just like every other Public institution in Kenya. In need of an immediate thorough overhaul. The Citizen of Kenya must say NO to dictatorial Impunity in favour of Democracy and Accountability. The Rule of Law must prevail in Kenya.

The Minister for Justice has announced that over 830,000 Kenyans are awaiting Justice in the Courts. Is it right that the Government should continue arresting Kenyans for calling out for Justice?

We demand the unconditional release of the activists and that the Police reforms as reiterated in the Waki report be implemented to the letter in order to reform the police. Justice Waki said that these reforms must be immediate. What other mandate does the Grand Coalition Government have other than the National Accord?

The Waki report is clear as regards the conduct of state security agencies, they failed institutionally to anticipate, prepare for, and contain the violence. Often individual members of the state security agencies were also guilty of acts of violence and gross violations of the human rights of citizens.

Violation of the Human Rights of Citizens
The Kenyan Commission on Post Election Violence (CIPEV) completed its 4 month investigation into the politically motivated violence which rocked Kenya after the 2007 Presidential election with a stinging indictment of institutional failure and complicity of Kenya’s internal security apparatus in gross human rights violations and crimes against humanity.

The Commission’s report, delivered to the President of Kenya, charges that Kenyan security agencies “failed institutionally” to contain and prevent the violence. Justice Philip Waki, of the Kenya Court of Appeal, who chaired the Commission also presented the final report to the Kofi Annan led Panel of Eminent African Personalities.

The CIPEV report accuses some state agents of being “guilty of acts of violence and in our finding in broad violation of the human rights of citizens” and states that such were the results of a trend towards institutionalizing violence against the public. It also states that 1,133 Kenyans were killed and 405 of this number were killed by gun shots during the 2 month period.

Free-for-All Situation
The post election violence was not merely citizen to citizen attacks – it also consisted of systematic attacks against Kenyans based on their ethnicity and political persuasion. The ability of the state internal security apparatus to protect Kenyans from violence is harshly questioned, and the CIPEV took note of the fact that in some cases attackers traveled long distances, unhindered, to attack their victims.
The “free-for-all” was made possible by the collapse of state security which saw the police overwhelmed. This conclusion by Justice Waki must surely put the Police Commissioner, Major-General Hussein Ali, on the spot.

The names of the perpetrators and sponsors of the violence was kept in a sealed envelope, which was presented to Kofi Annan of the Panel of Eminent African Personalities pending establishment of the Special Tribunal for Kenya which was expected to try those bearing the greatest responsibility for crimes against humanity. The Panel of Eminent African Personalities may decide to send the names to the International Criminal Court Prosecutor for investigation now that Parliament has rejected the Constitutional Amendment Bill that was to establish the Special Tribunal. Surely the Police Commissioner, Major-General Hussein Ali, bears the greatest responsibility for crimes against humanity?.

The Grand Coalition Government continues to allow injustice to Kenyans by allowing a rogue Commissioner of Police to remain in his position one year after the chaos, and worse continues to allow his force to give illegal orders for the continued violations against the people of Kenya. Justice Waki called for the immediate reform of the Police Force. One year later this is where we are. Failure to deliver the National Accord! The truth is that Kenya’s Security Apparatus was Severely Indicted by Post Election Violence Report.

The structure of the Kenya Police
There are two police departments in Kenya. The first is the Kenya Police Force, established under the Police Act and headed by a Commissioner of Police who is appointed by the President under the Constitution. The second is the Administration Police, which is established under the Administration Police Act and is headed by the Administration Police Commandant.

The Police and Administration Police have various specialised units deal with various types of security threats.
The Police have the following units:
• Criminal Intelligence Department
• General Service Unit
• Police Air-Wing
• Presidential Escort
• Kenya Police College
• Kenya Airports Police Unit
• Tourist Police
• Railways Police
• Traffic Police
• Dog Unit
• Anti Stock Theft Unit
• Anti-Terrorism Unit
• Diplomatic Police
The specialised units within the Administration Police are as follows:
• Administration Police Training College
• Security of Government Buildings Unit
• Rapid Deployment Unit

Both the Police and Administration Police have provincial commands. The Police department has established divisions, stations and posts within these provincial commands, while the Administration Police have set up district commands.

The Police have been given various powers by the law to enable them to perform their functions. The Police generally have the authority to arrest, detain, search and charge a person who they have reason to believe has committed an offence. They also have powers to enter and search premises, homes or vehicles. They can also take fingerprints, photographs or other evidence to assist them with investigations or prosecution of criminal offences. A recent amendment to the Evidence Act does not allow the Police to take confessions from accused persons, which they could previously do. But as the Law gives the Police powers, the Law does not allow the Police to break the Law.

There is immediate need for Culture and attitude changes within the police force
From a Force to a Service
From meeting the interests of the rich and powerful to servicing the needs of all citizens
From centralised command and control and isolation from the community to community consultation, participation and partnership
From secrecy and lack of democratic accountability to local accountability and openness
From reactive to proactive and responsive
From law enforcement driven to the prevention of crime
From unsympathetic to victim focused
From detachment to integration with other elements of the justice sector
From abuse of human rights and unethical behaviour to the protection of human rights and ethical policing practices
Source: Department for International Development (DFID), Safety, Security and Access to Justice: Putting Policy into Practice, July 2002

The Role of the Police in society
Providing safety and security for its citizens is a major responsibility of government. The government ensures that there is security and safety through a department known as the Police Force, whose primary responsibility is to safeguard peace and order. The police enforce the law on behalf of the government for the following purposes:
• To protect the lives and property of the people of Kenya, and to help and reassure them. The police are required to uphold the law in a manner that protects the rights of individuals and the public good, and also to defend Kenya in the event of war or emergencies.
• To preserve peace and security. The police prevent and control behaviour that disturbs the public peace, including intervening in conflicts that arise between citizens
• To prevent and control crime. The police respond to and investigate crimes, and patrol the streets to prevent offences from occurring

Other than law enforcement, the police also provide services that deal with a wider range of needs of the community, including:
• Assisting in emergencies and life-threatening situations such as fires and accidents.
• Assisting in mediating disputes in families or in the community.
• Co-ordinating the safe and effective flow of traffic.
• Working with the community and other government departments to resolve issues of concern.

Security is therefore increasingly being viewed as an all-encompassing condition in which people and communities live in freedom, peace and safety, participate fully in the governance of their countries, enjoy the protection of fundamental rights, have access to resources and the basic necessities of life, and inhabit an environment which is not detrimental to their health and wellbeing. Security especially matters to the poor and other vulnerable groups, particularly women and children, because bad policing, weak justice systems and corruption mean that they suffer disproportionately from crime, insecurity and fear. They are consequently less likely to be able to access government services, invest in improving their own futures and escape from poverty. In addition, the rule of law, an independent judiciary, checks and balances in government, and functioning government institutions are also necessary for security and stability to thrive.

The Police have been given various powers by the law to enable them to perform their functions. The Police generally have the authority to arrest, detain, search and charge a person who they have reason to believe has committed an offence. They also have powers to enter and search premises, homes or vehicles. They can also take fingerprints, photographs or other evidence to assist them with investigations or prosecution of criminal offences. A recent amendment to the Evidence Act does not allow the Police to take confessions from accused persons, which they could previously do.

The use of these powers by the Police is controlled by the law, to ensure that they use correct procedures and also respect the rights of victims and offenders.

How the Police should perform their functions
Good policing is founded on the police doing their specific tasks well, and developing and sustaining effective partnerships with a range of other state institutions, civil society and business structures. An effective policing strategy ideally combines three components:
• Improving the core functions of the police: This includes patrolling/guarding, receiving charges from the public, detection of crime, preparing and conducting prosecutions;
• Mobilising a wide range of stakeholders in sustained efforts to prevent crime. This is sometimes referred to as community policing. It does not replace the core functions of the police, but enhances them;
• Emphasising that the police are an integral part of a wider system of justice, by fostering linkages with other parts of the government system and relevant civil society structures.

WE NEED TO AND MUST REFORM THE POLICE FORCE NOW!
Many problems affect the ability of the Kenyan police to perform their core functions effectively:

Inability to cope with increased crime
High poverty levels in Kenya have led to an increase in crime, anti-social behaviour and insecurity. Gender violence and crimes against children are especially on the rise. Regional instability has also led to the entry of illegal firearms and other weapons into Kenya, and organised crime in illegal immigrants and narcotics is also on the rise. Terrorism is also a real threat, with Kenya having been the target of terrorist activities in the past.

There is therefore an increased demand for police presence and services. The police force is, however, severely understaffed, with a police to population ratio of 1: 1,150 against the United Nations-recommended ratio of 1:450. In addition, poor pay and conditions of service in the police force do not attract quality recruits. This means a delayed response to reports of crime and very low rates of prevention and detection of crime. There is thus an urgent need to recruit more police officers. Recruitment, deployment and promotion of police should, however, be on the basis of clear and appropriate criteria, to avoid situations where police officers owe their positions to the patronage of individuals outside the police force. As was illustrated by the Kenya Anti-Corruption Commission towards the end of 2005, recruitment of police officers is an area beset with corruption.

There is also a need to improve the terms of service of police officers, and to ensure effective deployment, with the police handling clear core functions. An example is that of driving and guarding VIPs, a task currently performed by the police, distracting them from their real work.

Endemic corruption
The Police have over the years consistently been cited in various surveys as one of the most corrupt institutions in the country, particularly in the surveys undertaken by the Kenya chapter of Transparency International. Apart from extortion by the police, the public have also complained of police torture, harassment, incivility and unlawful arrests. Corruption in the issuance of driving licenses to poorly trained drivers, and corrupt traffic officers, have been singled out as the major causes of the high rate of road accidents in Kenya.

Corruption in the police force has contributed to a general climate of lawlessness and has undermined the effectiveness of the fight against crime. There is a near total lack of public confidence in the competence and integrity of the police, and this has also resulted in low reporting levels of crime. Effective and transparent discipline procedures, accountability measures and an effective change management strategy for the police are urgently required to deal with the institutionalized corruption. This is important since there is likely to be strong resistance to change from within the police force.

Logistics and Facilities
The police require adequate transport and appropriate and modern equipment for the efficient and effective conduct of their duties. This includes vehicles, uniforms, communications equipment and firearms. Lack of transport and equipment prevents timely responses to criminal incidents and also means that many Kenyans, especially in the rural areas, have little access to the police. It also affects the transport of prisoners to court for remand or trial hearings.

Other facilities that the police currently need are housing and accommodation; medical and welfare schemes; and recreational facilities The challenges faced by the police in this regard are inadequate budget allocations with irregular and unpredictable funding that prevents effective planning and development. Existing procurement procedures are cumbersome, bureaucratic and too slow.

Training
Many junior officers in the police force are under-skilled. This is particularly critical given the increasing sophistication of crime, and has led to inappropriate approaches to prevention of crime; poor management of scenes of crime; and incompetent prosecution of criminal cases. So training is needed not only to impart the necessary policing skills, but to also effect a change of culture and attitudes within the police force, from the prevailing culture of corruption and impunity, to one of service and respect for human rights. There is also a need to train the officers who will be responsible for implementing change within the police. The following table illustrates the culture and attitude changes required within the police force.

Partnerships and Community Policing
The police are supplemented by non-state structures such as community guards and private security. In Kenya, non-state policing systems have developed in line with village structures, and include vigilante groups and neighbourhood watches. They are an important element in ensuring safety and security for people living in remote areas. The other non-state policing prevalent in Kenya are private security companies, often used by business enterprises and people living in urban areas to provide an alternative or additional visible policing presence. Civil society also plays a critical role in increasing accountability in the police force by demanding change, acting as a watchdog over the actions of the police and also providing technical input, especially in training and equipment.

Non-state bodies can, however, resort to mob justice and can easily fall under the control of political factions and become unruly and uncontrollable. Civil society can also become politicised and promote divisions within society or simply engage in irresponsible behaviour that leads to more conflict. Therefore, while both state and non-state policing are integral to improving safety and security, they both need to operate properly and effectively. Principles that guide effective policing by both the police and non-state security structures are:
• The roles that each of the security actors plays must be well-defined and transparent;
• The security organisation itself must be professional;
• The security organisations and civil society must adhere to human rights and democratic governance practices.

The Kenya Police have introduced a Community Policing programme as part of their reform initiatives. The programme involves the community in fighting crime and recognises the shared responsibility of the police and community to ensure a safe and secure environment. It is aimed at establishing active and equal partnerships between the police and public through which crime and community safety issues can be jointly discussed and solutions determined and implemented.

Linkages
Public safety and security depend not on the police alone, but on the effective working of the entire justice system. It is therefore important to supplement the efforts of the police with parallel efforts to improve the judiciary and penal correction (prisons) system. Such a sector-wide approach has now been adopted under the Governance – Justice, Law and Order Sector (GJLOS) Programme and is also emphasised in the government’s Economic Recovery Strategy.

What can be done?

Improving transparency and accountability
• Without transparent access to information about the formulation and implementation of policies, plans and budgets, it is impossible to hold the police to account. The process by which the legal arrangements guiding the police are determined must be transparent, and a conscious effort must also be made to ensure that the basic documents governing the police are disseminated as widely as possible, and that the police are internally transparent, for example by setting up police complaints desks. The wide dissemination of information will help produce policies consistent with democratic governance of the police department, and help the public monitor the effective implementation of these policies.
• Accountability in the police departments means that the police are subordinate to certain government authorities, must explain their actions to these authorities (indirect accountability) and civil society (direct accountability), and are subject to sanctions for inappropriate actions as well as for inadequately explaining their actions. Civil society has an important role to play in promoting security-sector accountability, by tracking behaviour, drawing attention to deviations from national and international laws and good practice, suggesting ways of improving accountability, serving on public oversight and accountability bodies, and promoting dialogue between members of the security bodies and the public.

• A range of independent bodies can also play a role in enhancing transparency and accountability in the security sector. Given sufficient independence and credibility, the following can be useful:

• Public complaints bodies such as an independent Police Complaints Authority with powers of access and investigation.

• The Kenya National Commission for Human Rights Commission which has the potential to improve systems of accountability by dealing with complaints, and investigating violations of the law.

• The office of Ombudsman to investigate alleged human rights abuses by state bodies.

Security and intelligence structure often try to limit the amount and quality of the information they release. The demands of national security do sometimes require some secrecy and confidentiality, but too much of it can be counter-productive. Secrecy can for example be used as a cover for financial mismanagement or illegal activities. Proper accountability and transparency require that information be withheld only for legitimate reasons – which need to be tightly defined. It is therefore vital to be clear about what is being held in confidence and why it is considered sensitive.

Clear legal framework
The Police should operate within a clear legal and institutional framework governing their roles, mandates, and the hierarchy of authority between them, the legislature and the executive. Apart from the Police and Administration Police Acts, the only other legal provisions governing the operations of the police are those in the Constitution which establish the Police Service Commission and give it powers over the appointment and discipline of police officers. The Kenyan Constitution should, at a minimum, specify lines of authority within the Police, and the basic responsibilities and broad democratic principles to which members of the Police Force should adhere. The relevant legislation should then provide the details of governing the police, including the necessary accountability and oversight measures. The law should make it clear who has external and internal roles respectively, and how internal responsibilities are apportioned.
Non-state policing structures are currently not covered by national legislation, and need to be brought within the national legal and security framework to ensure that they act professionally and in accordance with national security policies.

Oversight measures

• The Legislature offers a mechanism to monitor and control the police through the approval of the government’s security policies and budgets; and overseeing expenditure, procurement, operations and deployments within the Police Force. The quality of legislative oversight, however, depends partly on the effectiveness of its structures and systems such as the committee system, and partly on the competence and knowledge of the legislators.

• Ministries responsible for managing the security forces need to be able to do so effectively. They include the Defence, Planning and Finance Ministries. Other ministries should also be able to take an informed interest in the police, given the implications of police actions for their activities. Ministers and civil servants from a number of departments need to be involved in the policy and planning processes for the Police Department, and will need an understanding of the security issues both broadly and in relation to their respective departmental concerns.

• The quality and effect of oversight measures will however depend on the following factors:
o The independence and accountability of oversight bodies;
o Guaranteed access of oversight bodies to financial resources;
o Clear delineation of the functions of oversight bodies;
o Knowledge of security issues and governing processes among oversight personnel; and
o Confidence building between security personnel and oversight personnel.

These reforms must take first priority. The fundamental human rights of Kenyans are not negotiable!

Tags: Administration Police, CIPEV, Commission of Inquiry into the Post Election Violence, Crimes Against Humanity, Crisis in Kenya, Justice Philip Waki, kenya, Kenya Death Toll, Kenya National Accord, Kenya National Dialogue and Reconciliation, Kenya Police, Kenya Police Commisioner, Kofi Annan, Major General Ali Hussein Ali, Mars Group Kenya, National Security Intelligence Service, NSIS, Panel of Eminent African Personalities, Political Violence, Post Election Violence, Waki Commission