Why is Civilian Oversight of the Police in Kenya so Important?

The Bill [1] which will create an independent, external, civilian body to oversee the Kenya police is now in the final stages of being made into law. Kenya is undergoing massive changes in its political and legal landscape, and the area of policing is no exception. Yet even in the wider context of the reform process that is in motion with the recent passage of the new Constitution in August 2010, the advent of the Independent Policing Oversight Authority will be one of the most important steps taken in the movement to achieve democratic policing.

In what one would hope is the eve of the passage of this new law, it is worth looking to both the past and the future of policing in Kenya to understand why it is so important. The citizens of Kenya do not need to be told why the police need to be reformed – the many problems within the police force are well known. Since Independence, policing remained often brutal and partisan, a tool for the powerful to use to achieve their own ends. This fact was once again demonstrated, most recently, in the chaos that erupted following the disputed 2007 elections.

Without question, the police were involved in the post-election violence of 2007-2008. That is, the police were both direct perpetrators of violence, and they were ineffective in trying, or did not even attempt to intervene, to stop violent conflicts. Further, police reacted in a partisan manner to the outbreaks of violence throughout the country. And whilst a dramatic example, it serves to demonstrate the ills that still plague the police to some extent, even today– from poor service delivery, a failure to achieve security for local people in many areas, and recurring allegations of human rights abuses and corruption.

Whilst the establishment of an oversight body for the police is not specifically referred to in the new Constitution, it is clear from the principles that are set out to be followed by the security organs and the police that external, independent accountability and oversight are needed.

Apart from constitutional reform, there were two significant inquiries and the resulting reports that inform the current phase of police reform. They are the Waki Commission report of 2008, from the Commission into the post-election violence, and the report of the National Task Force on Police Reforms in 2010. Both of these reports made many of the same recommendations, including the establishment of an external oversight body.

Further call for external oversight is found in the recommendations of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr Philip Alston. He specifically referred to Kenya, amongst other nations, as a place where impunity has historically been a significant problem within the police service. He observed in a May 2010 report that one of the ways to tackle impunity was to create a system of accountability, including external police oversight mechanisms.

With all of these factors considered, one can see that the Independent Policing Oversight Authority Bill was drafted in light of the obvious need for external oversight.

The Minister for Internal Security has previously stated that the creation of the Authority is a priority in the police reform process[2]. A process of consultation that has engaged civil society groups, along with stakeholders from the government and the police, led by the Police Reform Implementation Commission itself, has been undertaken.

So what will the new Authority do? The Bill proposes an Authority that will be staffed by civilians and handle complaints against the police. It emphasises the role of the Authority in making the police accountable to the public. Thus, one of the most important features as far as ordinary Kenyans are concerned is that there will be a body that they can approach directly to complain about the police, and who are concerned not with protecting their own and shielding themselves from criticism, but in properly addressing the complaint. This means not only a proper investigation, but also having the power to make recommendations that disciplinary or criminal action be taken against police.

Another important aspect of the new Authority would be that they are set to have a role not only in dealing with individual complaints or incidents but also in monitoring patterns and trends. This will help give an overall picture of the performance of the police – both to the public, and to the government. In the future, this could mean that instead of not dealing with problems until they are almost out of control, the Authority can identify any worrying trends and seek to have the government and those who manage the police address those issues as soon as possible. It is important that the scrutiny the police face does not end once new legislation is past – a continual monitoring role can, in turn, provide momentum for continued reform of the police well into the future.

How will the Authority do all these things? The Bill gives it significant powers. Firstly, the police should cooperate with the Authority as it goes about its work. This means that the Authority can request the assistance of the police, and they cannot obstruct them in their investigations. The Authority has fairly broad powers of its own – it has the power to gather any information, to interview any person, and to issue summonses that will require people to attend to be interviewed or questioned and to produce documents. The law will also make it an offence to disobey the Authority, adding teeth to those powers it has.

As this Bill is considered by Cabinet, and the legislature, the government should at all times be concerned that the Authority retains a strong mandate in its monitoring and investigation of the police – whether as a consequence of a complaint from the public, or as a result of a report of death or other serious allegation at the hands of a police officer. The government needs to ensure that the Authority has the powers at law, as well as the manpower and resources that it needs to get to the bottom of even the most serious allegations of corruption, killing, and torture.

One of the hallmarks of democratic policing is that the police are held to account for their actions – something that has certainly not happened in the past as Kenyans suffer under a culture of impunity. Although the police need to set up internal mechanisms to monitor and sanction police actions and misconduct, this needs to be complimented by strong and effective external, independent police oversight. One would hope that the law, and the Authority created, that emerges from the process underway sees the emergence of a robust, fully-independent and powerful Police Oversight Authority. Properly funded and allowed the space and independence to function in accordance with such a law, this development will be a vital feature of a comprehensive system of police accountability in Kenya.

(CHRI is a member of The Usalama Reform Forum, an organisation of CSO’s at the forefront of the security sector reform process in Kenya).

This article was first published in the Daily Nation (Kenya) on Tuesday, 16 November 2010.

• [1] Independent Policing Oversight Authority Bill.
• [2] Daily Nation (2010), Bill gives civilians power over Kenya police, 30 October : http://www.nation.co.ke/News as on 1 December 2010