The chairman of the National Police Service Commission Johnston Kavuludi recently barred the media from following the proceedings during the vetting of Police in Nyeri.
His reason for this was incoherent at best in that he claimed that Kenya was facing a “sensitive situation”. He cited the upcoming General Elections as part of this so-called “sensitive situation.”
Part of his announcement was that the directive did not bar the public from attending. The media were forthwith going to rely on “regular” briefings by the commission.
The reasons given were vague at best and presumed that the media, in reporting about police malpractice during vetting, was going to pose a security threat. Which begs the question, what was the rationale of allowing the public to attend if the information was so detrimental to national security?
Ironically, Kavuludi’s directive came just days after an NTV investigative piece dubbed Bribery Battalion, which showcased how rotten the Traffic Police department was in terms of soliciting bribes.
To add insult to injury, the NPSC had admitted that some former senior officers were still receiving monies from junior officers even after being fired following vetting.
Articles 33 and 34 of the Constitution ensure that every person has the freedom to seek, receive and impart information and enshrines the freedom and independence of the media.
Clearly, the authors of the Constitution understood the primacy of freedom of expression as it is absolutely indispensable for the preservation of a free society in which government is based upon the consent of an informed citizenry and is dedicated to the protection of the rights of all.
Increasingly, national security is being used as an excuse to deny citizens and journalists the right to information. However, for an entity to restrict rights, certain minimum standards have to be fulfilled in accordance with the Constitution which requires any limitation shall only be such as are provided by law and are necessary for the protection of national security.
Moreover, the right to seek, receive and impart information must be upheld as much as possible so that restrictions should be applied only when really necessary.
Punishments must be proportionate and not defeat the right itself. In this instance, banning media from the proceedings violates their Constitutional rights.
Basically, limitations must not be construed as justifiably limiting a right or freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation.
It thus follows that it is up to the Commission to cite what law or regulation they rely on for the limitation and prove the necessity of restriction.
Merely relying on security, especially with regard to the upcoming elections, leaves one wondering what past conduct of an officer could compromise peace.
Additionally, justification for limiting rights must be narrowly defined. Examples include revealing strategic information regarding a sting operation.
It would be justifiable to exclude the media from deliberations during the vetting of a counter-terrorism undercover police officer where the information would reveal his identity to Al Shabaab operatives.
The state agency should never withhold information concerning violations of international human rights and humanitarian law, including information they hold regarding violations committed by their own agents or by others. In this case, the Commission must be aware that the very nature of vetting is that cases of corruption and malpractice would be uncovered.
Police vetting is a matter of public interest. For this, a high threshold that demonstrates the specific national security concern, the necessity and proportionality of the limitation must be met.
Mr Kiprono is an advocate of the High Court of Kenya and senior Programmes Officer at Article 19 Eastern Africa [email protected] Phillip Ochieng resumes next week.