Police’s duty is not to be armament of the executive
Published on February 4, 2008, 12:00 am
By Dr Migai Akech
The Kenya Police force’s work is considerably influenced by the policy of the Executive branch of Government.
On the one hand, this is perfectly in order since all governments have a legitimate interest in the maintenance of national security. So, it is perhaps inevitable that the police force will be politicised.
Whether or not the citizenry will perceive this politicisation process as delegitimising the police force will depend on the extent to which the Government is perceived to be a “dispassionate arbiter” of political conflicts. Where government is seen as embodying broadly-agreed values and the neutral and equal application of the rules governing acceptable political conduct, the police force will be regarded as legitimate.
But where the government is perceived as a bastion whose primary purpose is to defend the interests of the powerful, the force may not be regarded as legitimate.
Executive control of police is problematic since it fuels perceptions of unfair policing where the force is perceived to be protecting the interests of the government of the day. How is this executive control manifested? The Commissioner of Police is appointed by the President, who is under no obligation to consult anybody in exercising this power.
This alone has serious implications for the autonomy of the force. Furthermore, the police force has no control of its establishment, since the Public Service Commission (PSC) appoints a critical mass of its personnel.
And since the members of the PSC are appointed by the President, the personnel and work of the public police is accordingly bound to be determined by the political considerations of the day. The genesis of the policy of Executive control of the police is to be found in the practices of colonial governments.
The colonial police force was constructed with the primary goal of protecting the interests of the colonial regime. Independence governments throughout Africa inherited this practice of law-and-order maintenance and reactive policing. Political regimes invariably struggle to ensure their survival in the face of competition from rival groups and from populations that do not accept their claims to legitimacy.
This exigency constitutes a fundamental influence on the work of the police, whose primary function accordingly becomes regime maintenance. Alice Hills argues that African police generally focus on the protection of regimes from domestic security threats to a greater extent than police in many other regions.
Every political regime strives to control the police force to ensure that it serves its interests. In Kenya, for instance, Dr Mutuma Ruteere and Marie-Emmanuelle Pommerolle have observed that both the Kenyatta and Moi regimes “turned the police into handy cudgels with which to bludgeon critics into submission.” And the Narc government demonstrated a particular desire to perpetuate this practice. For example, journalists who wrote stories critical of some key members of the Narc government were prosecuted for the offence of criminal libel by police on the instructions of the Office of the President without reference to the Office of the Attorney-General. Kenya Police has acknowledged in its Strategic Plan that it is vulnerable to political interference and that it has expended substantial institutional energy on regime policing.
If the police force is to be perceived to be protecting the interests of all Kenyans and in keeping with its motto of “Utumishi kwa Wote” then it must be democratised urgently. The force possesses perhaps the ultimate form of power, which is the power to use legitimate force.
This power can be corrupted easily where there are no democratic safeguards. There is a need to subject police power to checks and balances to ensure protection of basic rights and compliance with law.
What, then, are the reforms required to make policing in Kenya democratic? Throughout the world, the movement towards democratic policing has involved three essential reforms: the introduction of the professional model of policing to cut corrupt ties to politicians and bureaucrats, the introduction of truly effective forms of civilian oversight of policing and the introduction of culturally acceptable forms of community policing.
Reforms would insulate the police from executive interference by giving them operational autonomy and to ensure that they are accountable to the citizenry.
We need a democratic oversight body that regulates the work of the police and other security forces. The police would be primarily answerable to this body and not to the government of the day. The membership of such a body should be broadly representative of Kenyan society.
Further, such a body should be sufficiently autonomous. For such a body to ensure effective policing, it will be necessary for the police to retain responsibility for making operational and tactical decisions.
And to facilitate democratic policing, the civilian oversight body would be responsible for holding the police accountable for the consequences of their operational decisions. In addition, the civilian oversight body would have the responsibility of setting the broad law enforcement objectives for the police force. Granting the Commissioner of Police security of tenure will also enhance the quest for democratic policing.
Such a body is necessary in our fledging democracy and would have provided a legitimate and much-needed resolution of the current stalemate regarding how citizens ought to democratically express their disagreement with the decisions of public authorities in a politically fragile environment.
We need to revisit the Bomas Draft Constitution, which sought to establish an independent Police Service Commission.
The writer is a senior lecturer at the School of Law, University of Nairobi.