Kenyans must arise and defeat threats against police oversight

The Independent Policing Oversight Authority (Ipoa) is under threat.

While there have been subtle threats in the past three years, this one is overt.

There is a Bill in the National Assembly.

The memorandum of objects and reasons accompanying the miscellaneous amendment Bill (No. 57 of 18th September 2015), seeks to stifle or curtail IPOA’s independence. 

The Bill seeks to amend IPOA Act to empower the President to remove the chairperson or a member of IPOA if he deems it necessary, without the procedure of receiving a recommendation from a tribunal first.

The Bill gives the President power to act at his whim. There is no difference between this Bill and the former Constitution in which public officers served at the pleasure of the President.

GROWTH OF OVERSIGHT

The idea of civilian oversight of police began many years ago, particularly during President Moi’s excesses, where police were used to do Kanu’s bidding against the Opposition. 

This was the case whether the Opposition belonged outside Kanu, such as Mwakenya or the February 18 movements or within Kanu. 

Many were subjected to illegal disciplinary proceedings, taken through courts of law convened to hold hearings on trumped-up charges even in the night.

Police excess became so bad to the extent that one was ‘safer’ with thugs who would rob and leave you or kill you. They rarely detained and tortured people. But police did worse, thus the need for accountability. 

It was not until the Bomas Constitutional conference in 2003 that discussions on police oversight grew.

Police argued for a police service commission but civil society proposed a police oversight mechanism.

The public, under the banner, yote yawezekana bila Moi, united to arrest corrupt police. 

Though civilian oversight was evident, it never sprouted. Soon after, civilian arrests of police disappeared. Those in power failed to capture the moment.

CIVIL SOCIETY REBUKED

In Bomas, a senior police officer who is still serving, rebuked civil society that an oversight mechanism will never be created in their lifetime.

No wonder after the Bomas Draft came out in March 2005, the civilian oversight mechanism never found following.

The Bomas conference had more governance problems to deal with, including the need to restrict centralised state power through devolution and of course realising the  dream of a new constitution. 

But though the idea of civilian oversight did not die, it never really attracted the requisite support before the new constitution. 

The executive and police remained hostile while various intermediary versions of the draft constitution like Ufungamano and the Law Society of Kenya ones did not entertain the idea of an IPOA.

It was not until post-election violence that Kenyans ‘united’ in favour of oversight mechanism.

This was largely because of the number of deaths resulting from police shooting during the 2007 violence. At least one out of three Kenyans who died in that violence, died out of gunshot wounds. 

What was worse was the police response to this violence. Police spokesperson was dismissive arguing shooting may have been done by anyone given that police don’t have monopoly over guns.

ANNAN-LED MEDIATION

He even parodied the young Kenyan killed in Kisumu claiming the footage was a “Rambo Movie” style collage created by the media. 

Momentum for police reforms came from the mediation process led by Kofi Annan. But someone had to pick up all the police oversight discussions from Bomas and draft concrete and tangible recommendations.

The Kenya Human Rights Commission (KHRC) took the bold step. Working tirelessly for at least three months, the commission conducted extensive research covering regional as well as experiences in Europe, USA, Australia and Asia and drafted a paper that subsequently became the bill titled the Police Oversight Board Bill.

This Bill, launched in September 2008, coincided with a government initiative, the Police Oversight Board, constituted by at least 10 members including chairperson and appointees of the President.

It was gazetted under notice 8144 of September 2008 and signed by the then minister of State for Provincial Administration and Internal Security.

The board would be under this ministry. The desire to thwart creation of an independent body, which is IPOA today, could not have been clearer from this initiative.

The arrival of the three Phillips later in 2008 bolstered the case for an oversight mechanism. 

CONCERTED RECOMMENDATIONS

The first was Philip Waki, a Court of Appeal judge, whose report on post-election violence made concerted recommendations on an independent oversight mechanism after confirming the extent of police involvement in deaths, but without accountability. 

The second was Philip Alston, a UN special rapporteur, whose report on arbitrary or summary executions and enforced disappearances reached similar conclusions regarding accountability to an external oversight mechanism. 

Then there was Philip Ransley, a retired Judge whose comprehensive Task Force Report also called for police oversight body.

The three Philips received concrete recommendations in the form of a Bill from KHRC. The submissions made were indeed convincing to all three.

The creation of IPOA as an independent body by law, and the avoidance again by law of executive influence where a minister appoints members was deliberate.

The need to avoid executive fiat where appointments are not based on any criteria or merit was deliberate and needs to be protected. 

It should by now be clear why IPOA had to be created and structured the way it is. 

This story confirms that IPOA was not established by accident or executive fiat, but by thoughtful and concrete proposals by patriotic Kenyans. 

PATRIOTISM
Though many might not have an idea where we came from, it behooves us to know where we are headed and why we must protect the independence of IPOA. 

Finally, IPOA is not part of the so-called Constitutional Commissions.

It was already established in letter and in spirit in 2008 before the Constitution came into effect.

The law just delayed until 2011. IPOA defends the Constitution, not because it is its creature.  

Finally, IPOA has always stood for what is right, what is lawful and what is just. Kenyans too are called on to defend the truth and the just. This is not about President Uhuru Kenyatta, it is about patriotism. 

As a remarkable President of the USA, Theodore Roosevelt, stated: “Patriotism means to stand by the country. It does not mean to stand by the president or any other public official, save exactly to the degree in which he himself stands by the country. It is patriotic to support him insofar as he efficiently serves the country. It is unpatriotic not to oppose him to the exact extent that by inefficiency or otherwise he fails in his duty to stand by the country. In either event, it is unpatriotic not to tell the truth, whether about the president or anyone else.”

Kenyans of goodwill should support IPOA, not the President.