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Why President Must Reject Retrogressive Amendments to National Police Service Commission Act 2011 Passed by National Assembly

    May 5, 2014

 

The sanctity of the independence of the Constitution was adulterated and its architecture and design so heavily mutilated that it lost its identity and form.

2.      Post-independence constitutional changes and legal amendments undermined and weakened key institutions including the Judiciary, the Police, the Electoral System and Parliament while strengthening the Executive. The changes resulted in the centralization and monopolization of power by the executive and minimized checks and balances on the executive by other institutions.

3.      The Constitution of Kenya, 2010 provides for elaborate checks and balances mechanisms that will ensure efficient, accountable and equitable governance of the political and economic affairs of the state at all levels.

4.      Constitution enshrines a principle of shared power between and among Institutions across the board.

5.      Constitution guaranteed legal and independence of the National Police Service removing administrative and bureaucratic control by the civil service and political class. It strategically  and purposefully created National Police Service Commission   and gave it functions are to lay down policing policy, indicate performance criteria and keep police performance, challenges and its needs under review. The Commission is a means of conditioning and defining the powers of the political executive and police and clarifying each ones sphere of responsibility and accountability ensuring bipartisanship and shield policing from changes in political power by keeping policies more or less constant.

6.      Constitution granted immunity to the National Police Service from Executive and politicians control and divested the National Police Service Act, 2011 of all colonial vestiges and transformed the focus of National Police Service focus from “rule” to “democratic governance”. Constitution created a completely new policing and law enforcement system. The new Police System is distinctly detached from administration. An elaborate policing and law enforcement system is supposed to be established corresponding with devolved system of governance units set up by County Government. The System is directly  accountable and answerable to the Inspector General of National Police Service. Remnants of Provincial Administration are not part of security organs.  

7.      The political class and top civil service operatives, especially in State Ministry of Internal Security are  less willing to loosen grip on police allowing the Service to be fully transformed, do its work independently and deliver policing service  professionally. This anti-people and Constitution group of individuals is determined to reverse the clock taking the National Police Service and the country back to Egypt.

8.      Archaic and colonial police laws dating back to 1926 have governed Kenya police until 2011 when new National Police Service Act was enacted flowing from the Constitution. There has been almost 30 years of debate on policing and reform, with commission after commission submitting reports and recommendations to governments. Each report has gone unimplemented.

9.      The National Police Service Act 2011 is a very transformative law. It removes ambiguities, overlaps, duplications and contradictions in the National Police Service including command structure and accountability. The law has created new Police structure, which abolishes six ranks, including that of the Commissioner, SDCP1, SDCP2, Deputy Commissioner of Police, Senior Assistant Commissioner of Police doing nothing part from clogging and bureaucratizing police functions. About 1,200 officers had held these posts across all police units. This group of officers with tacit support of operatives in State Ministry of Internal Security has been blocking Police Reforms. We urge President to remove all officials who been in this Ministry including the Principal Secretary.

10.  Amendments passed by National Assembly to National Police Service Commission Act 2011 are ill advised and unconstitutional. It is strange National Assembly passed amendments without proper understanding of the philosophy and intention of the Constitution, the history of policing in the country and what the Constitution was curing. The  passed amendments reverse the clock and  violate the Constitution on the legal and institutional independence of the National Police Service  by purporting to  oust and or weaken  the following:

                                I.            Immunity to the National Police Service from Executive and politicians control. A constitutional guarantee that bar state government from  exercising unwarranted influence and or pressure on the national Police Service 

                              II.            Divest of the National Police Service Act 2011 Act of all colonial vestiges and transforming its focus from “rule” to “governance”.

                            III.            Process that ensure the Inspector General of National Police Service and other officers are  appointed through merit based transparent  and competitive process

                            IV.            Separate the investigation and law and order functions of the National Police Service 

                              V.            Role of National Police Service Commission in overseeing police functioning and deciding transfers, appointments , promotions and other service related matters of police officers 

11.  Transformative Police Reforms provided in the Constitution will free up the National Police Service Police from the whims of politicians and executive, and lead to better policing. Executive control over the police has been a festering wound for far too long.

12.  The constitutionally inspired reforms are supposed to achieve functional autonomy for the National Police Service (through security of tenure, streamlined appointment and transfer processes, and the creation of a "buffer body" between the police and the government) and enhanced police accountability (both for organizational performance and individual misconduct.)

13.  Judiciary in exercising its powers of ‘complete justice’ and ‘judicial oversight’ is empowered to issue directions regarding a Police reforms in order to safeguard the constitutional independence of the National Police Service as key cog in criminal justice system.

14.   Judicial review of the Amendments and other police reforms related matters, including addressing the most glaring gaps and bad practice in the functioning of the police, will be necessary should the President assent to the perfidious amendments.

15.  Government has never been unequivocal on police reforms. It keeps dragging its feet on implementing the constitutionally enshrined police reforms. It is expectation of every Kenyan that the President will live faithfully to his pledge of supporting transformative Police Reforms and reject those backward amendments passed by National Assembly. .

 

 

Signed By

 

Ndung’u Wainaina

Executive Director