Gross violations of human rights by the police, including extra-judicial killings and torture, used to go unpunished. This prompted human rights defenders to push for the establishment of an independent agency to investigate the officers involved in such acts.
The Committee of Experts that drafted the 2010 constitution proposed the formation of the Independent Policing Oversight Authority.
This would investigate complaints of professional misconduct against police officers and recommend appropriate actions to the relevant authorities.
The spirit of IPOA was born out of past attempts to derail police reforms and the fact that police officers cannot be trusted to investigate and prosecute themselves.
The idea was to have an independent agency to carry out investigations and take action against officers found to have acted against public interest and violated human rights in performance of their duties.
And the 11th Parliament in 2011 enacted the IPOA Act, which established the IPOA with the mandate of initiating investigations unilaterally or upon receiving complaints related to disciplinary or criminal offences committed by any member of the National Police Service, including killings and torture.
However, all that Kenyans wanted to achieve, and have achieved to some extent, could be stopped and reversed if proposed amendments to the IPOA Act are passed.
CRIPPLING OF POWERS
Through the [Miscellaneous Amendments] Bill 2016, the National Assembly intends to strip the IPOA of powers to the extent that legal experts say will completely cripple it.
MPs want to insert the requirement that
IPOA must comply with the procedures of obtaining privileged information where the document, thing or information is privileged.
Lawyer Wahome Thuku
says the law must not place IPOA at the mercy of the Inspector General of Police.
"The IG should not decide on what information to provide. This would be grossly interfering with the working and independence of the authority," he said.
"The IPOA is principally established to deal with all complaints against the NPS or individual police officers, by colleagues and civilians. The law empowers it to obtain all the information and material without interference by any institution or person.”
Thuku added that: “Where any such information is said to be privileged, such determination should be made by a court of law upon application of the IPOA or the NPS."
He said attempts to bring back opaqueness in the police sector must be resisted.
"We can't see the progress reversed through the amendments that would make the IPOA subservient to the Inspector General of Police in its operations," Thuku said.
He said: "The IPOA is there to ensure that police comply with the Article 244 of the constitution, and its mandate should not be hampered in the slightest way. The authority was established because police could not be trusted to investigate their own misconduct and abuses."
DATA LIMITS UNDEFINED
Interestingly, the Bill does not define the "privileged information" in its context. IPOA and human rights groups fear that this vagueness could be abused by those under investigations.
Peter Kiama, executive director of Independent Medico Legal Unit, said the proposed changes are meant to sabotage police reforms and decimate chances of the IPOA holding police accountable on behalf of the public.
"Under the literal rule of statutory interpretation, those words in the proposed amendments seek to limit the documents, things or information that can be shared with IPOA by officers or persons summoned to appear before the authority, which will hinder the IPOA's mandate and deny the public its right to information," Kiama said.
He said the only way the authority can commence any investigation is through receiving information from the public and the NPS. Kiama said if information is not forthcoming, the work of the authority is effectively curtailed.
"To be effective and maintain the support of the people it serves, IPOA must be able to interview all witnesses, including police officers, and have access to all relevant documents needed to complete its investigations," he said.
The current Act has given IPOA powers to summon serving and retired police officer and demand from police any document, thing or information that may be considered relevant to its functions.
The Act also entrusted the authority with ensuring police embrace professionalism and discipline, transparency and accountability.
The authority was tasked with ensuring independent oversight of the process of handling of complaints by the service.
These were meant to guarantee that police uphold the highest standards of professionalism and respect for the constitutional rights and fundamental freedoms for all Kenyans.
The IPOA was conceived out of Kenyans' past experiences with the Kenya Police Force, which the constitution sought to transform to a professional NPS.
Anchoring the IPOA on the constitution was meant to shield it from any interference from political establishments among others, during performance of its functions, to ensure its independence, dignity, impartiality and effectiveness.
Haki Africa executive director Hussein Khalid
said the forces against police reforms are behind the efforts to smuggle back police impunity and negate what the IPOA has achieved.
"For many years, it has been difficult to have genuine police reforms. And while we have made huge strides in many other sectors, including in prisons, it has been extremely hard to get the same results in the police sector," he said.
"This attempt to water down the work of the IPOA Act is further proof of the difficult environment in which the police sector reforms are happening."
The rights activist said the amendments should be dropped for the sake of the NPS’s image.
He said the NPS is grappling with lack of internal democracy and cannot be entrusted with investigating its misconduct or that of its employees.
Khalid said the IPOA is the only independent oversight institution over the police.
The National Police Service Commission has no autonomy to oversee the police and the only institution guarding public interests in policing sector is IPOA, he said.
"Changing this will not only go against the whims and wishes of Kenyans but more importantly, will present a negative image of the police to the public," he said.
"If you are confident about your actions, and if you truly don't support any police officer who commits a crime or violates any rights, why would you want to subject the IPOA to such amendments?"
RESISTANCE FROM IG
Ndung'u Wainaina, executive director of International Centre for Policy and Conflict, said the amendments will give the police powers to usurp the sovereign will of the Kenyans, as reflected in the constitution.
Wainaina said the IPOA is required to regulate police oversight and accountability. This strengthens integrity in policing, improves law enforcement and internal accountability, and enforces democratic control of law enforcement agencies, he said.
“The inclusion of constitutionally civilian oversight mechanisms, from the standpoint of operational and institutional of the police, contributes to the constructive evaluation of results, processes and work of the policing systems,” Wainaina said.
"It is deeply disturbing that resistance towards transparency and accountability persists within police with tacit support from the Interior ministry."
The IPOA has complained that its investigative role has increasingly been frustrated by the same police who are subject to investigations on the basis of purported orders directed to them by the Inspector General of Police not to deal directly with the authority.
It has in the past accused IG Joseph Boinnet of continuously instructing his officers not to accept any summonses, letters or any kind of communication from IPOA or to provide to any officer from the authority any information without his express authority.
"Further, in matters where the IG has been directed to arrest suspect’s police officers by the Director of Public Prosecutions and IPOA, he has blatantly refused to heed our directives," the authority states in a letter to Speaker of the National Asembly Justine Muturi.
The authority said Boinnet has been frustrating it in many ways, including by refusing to present evidence to the IPOA as requested, obstructing IPOA officers in conducting their lawful duties and denying IPOA inspectors and monitors access to police premises.
IPOA officials were locked up in Kayole police station after a scuffle with the then Kayole OCPD Ali Nuno in July last year.
But the Director of Public Prosecutions intervened and ordered the police not to press any charges against them.
Nuno had declined to receive summons letters and told the officers to serve them to Nairobi police commander Japeth Koome, as directed by Boinnet.
The IG has ordered police officers to ignore summonses from IPOA and said the summonses must be served through his offices and officers cannot respond to IPOA without his express authority.
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SIDE BAR
Why amendment may lead to more acquittals of cops
On January 16, 2008, policeman Edward Kirui was caught on camera shooting two protesters in Kondele, Kisumu town, at the height of the post-election violence that followed the 2007 presidential election debacle.
In the video recorded by a KTN Journalist, Kirui was seen mercilessly kicking Tanzanian Ismael Chacha and George Onyango as they lay down, dying.
The two, who had been caught up in protests against alleged rigging of the elections, were pronounced dead on arrival at the then Nyanza Provincial Hospital.
CONFLICTING SERIAL NUMBERS
Investigations into the shooting started immediately and the then area CID boss Ali Zimbu withdrew Kirui's AK47
serial number 08378
on January 19.
Zimbu made an entry in the Occurrence Book in the presence of then Kondele OCS Hansent Kaloki, registering he had withdrawn the firearm.
This rifle was later handed over to Patrick Gikunda, Ali Samatar and Edward Magiri from the Directorate of Criminal Investigations
headquarters, Nairobi, as investigations into the murder began.
As they proceeded with investigations, they collected the Arms Movement Register. The three CID officers arrested Kirui on Wednesday February 6, 2008, and escorted him to Nairobi.
By this time, firearms examiner Johnstone Mwongera had examined a firearm serial number 3008378 that is said to have had fired the fatal bullet retrieved from Onyango's body, together with the bullet.
Andrew Nyarindu from Kisumu CID headquarters obtained Onyango's postmortem report and the bullet retrieved from the deceased's body that he later presented to Gikunda.
The detectives had obtained the Arms Movement Register and the AK 47 that had been held by Kirui and handed it to Mwongera for for the ballistics analysis.
Gikunda prepared the exhibit memo, which he handed over to Mwongera, citing the serial number of the gun as
serial number 3008378.
Kirui was charged with Onyango's murder before Justice Onesmus Mutungi [retired], on February 8. Mwongera testified that the bullet delivered to him, after it had been recovered from Onyango's body, was fired from the rifle serial number 3008378, and that was the gun presented before the court. But Kirui maintained that the firearm issued to him was
23008378 and not 3008378.
The confusion in the identification of the would later
earn Kirui acquittal from murder charges on June 21, 2010.
Justice Fred Ochieng said even though all the other evidence adduced showed that Kirui was positively identified at the scene of the shooting incident and was captured on film as he appeared to shoot the two, the court was unable to
reconcile those facts with Mwongera's findings.
Ochieng said Mwongera had concluded that the fatal bullet was discharged from a gun that was different from the one which the accused had.
“Did Gikunda or any other police officer
replace the gun which had been recovered from the accused, with another one? If not, where did the rifle
serial number 3008378
come from? And if there was a change of guns, who did it, at what stage, and for what reason? But if there was no change of guns, why are there two different serial numbers?” Justice Fred Ochieng asked.
"In the event, I have no alternative but to give to the accused the benefit of doubt, because it is possible that the fatal bullet was not discharged from his gun.”
UNWANTED PRECEDENT
Haki Africa executive director Hussei Khalid
said the amendments to the Independent Policing Oversight Authority Act to deny the IPOA powers to obtain information, documents and items for investigations would open the floodgates to similar cases.
He said the amendments are meant to obscure the process of gathering evidence against police officers implicated in criminal activities, by denying the authority access to critical evidence that is in the hands of the police and cushioning errant officers from criminal responsibility.
Khalid said Kenyans know and have complained for many years that the police cannot investigate themselves and there must an independent body that does that.
"It is obvious what the intentions for the amendments of the IPOA Act are. We have seen in this country for many years that it has been difficult to have genuine police reforms,” Khalid said.
“If truly you know you have a police service that is in line with the constitution, you should not be afraid of investigations and handing over of evidence."