“City askaris” is what they are usually referred to in Nairobi.
Officially they are an inspectorate, an expression used in other counties. Quite a number have them, and several counties have passed law about their inspectorates.
Apparently in Mombasa last year, a magistrate said there was no legal basis for askaris to arrest people. But I want to go further and suggest that the whole notion of county inspectorates in the way most of them operate may be unconstitutional. Indeed, giving them the power to arrest perhaps simply increases their unconstitutionality.
This has “bugged” me for years, ever since I read Article 247 of the Constitution. This says, “Parliament may enact legislation establishing other police services under the supervision of the National Police Service and the command of the Inspector-General of the Service.”
The obvious question is, are county askaris, under whatever name, “police”? If so, Article 247 says that only Parliament may create such a service, not a county law, and that any such service must be supervised by the National Police Service and be commanded by the IGP (who has overall and “independent command over the National Police Service”. And the Fourth Schedule of the Constitution (an Appendix allocating powers and responsibilities between county and national governments) lists “police services” as a function of the national government.
ARE COUNTY ASKARIS ‘POLICE’?
This is not just a question of name. Just as “a rose by any other name would smell as sweet”, so a police service by any other name would remain in essence a police service.
There are various international guides to police standards of behaviour but they do not have to define exactly who the “police” are. But if a law uses the word “police”, it is necessary to know what is meant.
The Oxford English Dictionary (a huge publication that is the leading authority on the meaning of words in English at least as used in UK standard English) says, “The civil force of a state responsible for maintaining public order and enforcing the law, including preventing and detecting crime.”
Not every service that has the function of ensuring the law is complied with is a police service. The Office of the Auditor General has such a function. So does the Occupational Safety and Health system.
Even having the power to arrest does not necessarily make one part of a police service. Chiefs have some powers of arrest, as do members of the Kenya Plant Health Inspectorate Service. In fact, members of the public have the power to arrest in some limited circumstances – under the Criminal Procedure Code.
If a case before a Kenyan court requiring it to decide whether a particular body was actually a police service, I imagine the court would look at the broad picture. Is it mainly concerned with preventing and penalising (or starting a process to penalise) breaches of the criminal law? Is it a coherent, organised and disciplined force? Whether it has a uniform might be relevant. Perhaps it might be relevant whether the organisation could deal with a wide range of crimes and behaviour or only a limited range. I would suggest that whether the service was armed or not might be considered but would not be conclusive. Traditionally many police services have not been armed – other than perhaps with truncheons or batons.
To take Nairobi: The inspectorate and investigations subsector is said (on the county government website) to have, among other things, reduced illegal menace within CBD eg hawking, obstructions, controlled street families/mugging within CBD, and reduced crime levels from 40 per cent in 2012 to 10 per cent. (40 per cent and 10 per cent of what is not clear).
They have a uniform, and they have ranks like commanders, inspectors, and sergeants. Under Nairobi’s relevant law, they have wide powers of arrest. Doesn’t this sound rather like police – though limited to dealing with the functions of the county?
CONSTITUTIONAL VISION
When interpreting (understanding) a legal document, it is often helpful to ask questions like, “Why is this provision here?”
The Kenyan Constitution reflects Kenyans’ vision of a new nation, a marked departure from the past. The police are part of that vision. The National Police Service must strive for the highest standards of professionalism and discipline among its members; prevent corruption and promote and practice transparency and accountability; comply with constitutional standards of human rights and fundamental freedoms; foster and promote relationships with the broader society (a short version of Article 244). They were renamed a “service” – not a force.
This could be undermined if counties could set up their own police that were not subject to constitutional directives of this sort. Article 247 (above) makes perfect sense from this perspective.
It is of course a tragedy that the National Police Service has dismally failed to reach the high standards set in Article 244. It is almost laughable to think of the NPS supervising any body. (It is not really clear what being supervised by them would involve.)
But people do sometimes say, “The city askaris are even worse than the police”.
The High Court awarded Sh4 million damages when a Nairobi City enforcement officer killed a street vendor.
The judge commented: “The hounding around and the beatings … appeared a routine process as the askaris continued to engage the hawkers in running street hide and seek games.” Something needs to be done.
WHAT CAN BE DONE?
If county enforcement officers or inspectorates (whatever they are called) are police, they are anyway unconstitutional because the only mention of police in Schedule Four of the Constitution is as a national government function.
Our Constitution is not like that of South Africa, which says there must be national law providing “a framework for the establishment, powers, functions and control of municipal police services.”
In 2018 Senator Ledama Olekina produced a Bill that would have created a framework for county inspectorates. It does not satisfy Article 247 because it does not provide for supervision by the NPS or command by the IG of Police. If it is not about “police”, arguably the national Parliament could not make this law.
If it is about police, then it is passing a national function to the counties. But counties can only take over a national government function if it is agreed between the national government and the county/ies – and financial resources needed are transferred. This is Article 187, which was used by the national government to take over much of Nairobi county’s functions.
Yet it does seem the counties should have at least some say in local policing. The South African Constitution says: “The national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government.”
The Kenyan Constitution does not have anything similar – but in fact the Kenya Police structure now corresponds to the new national structure. Like the old Provincial Administration, they kept the basic structure, just aligning it with “regions” (old provinces), counties, subcounties etc.
The real mechanism for liaison between police and counties is supposed to be County Policing Authorities under the National Police Service Act. They are intended to liaise with the police themselves over priorities in the county, and oversee performance. The system has not been fully operationalised and Katiba Institute went to court to seek an order that the CPAs should be set up.
If activities by counties themselves to enforce their own laws risk threatening the lives and security of citizens it is perhaps best that they are performed by the national police, flawed as they are, with constitutional obligations and being monitored by the Independent Police Oversight Authority.
Interestingly the Nairobi county law says the inspectorate must obey directions from the Inspector General of Police – seeming to recognise that they are police, and acknowledging Article 247. But if they are police the county cannot make law about them.
This is a topic ripe – if not for a court case – for a serious discussion about the topic of law enforcement at county level, in a way that complies with the Constitution.
