Why draconian laws are not the panacea for a peaceful, secure nation

After baying for blood for several months, the public got a rare concession from the Government with the departure of Internal Security minister Joseph Ole Lenku and Inspector-General of Police David Kimaiyo.

It took the loss of 64 lives for the President to wake up to the reality that his man was not up to the task.

Cooking and guarding are not exactly related vocations.

We now expect new brooms to come clean the Augean stables that are our security sector.

They have their work cut out. Reforming our security has to contend with three very formidable challenges.

First, the colonial legacy ethos of our security services, the police in particular, which is not to protect citizens, but rather to protect an oppressive government from rebellion by the subjects.

This was most recently on display during the Saba Saba rally.  We were told that the Government had mobilized a force of 15,000.

Some parts of Nairobi were totally locked down, notwithstanding the fact that the opposition had held several peaceful rallies in other parts of country.

The purpose of the mobilisation was political showmanship, not security.

We have not seen such capability and zeal deployed in Lamu or Mandera. It took very loud public protests following the stripping of women in Nairobi to embarrass the police into action.

DIRTY WORK

Second, the security services do the dirty work for the political establishment.

They facilitate and protect drug traffickers and other crime syndicates who in turn finance politics.  They eliminate and intimidate witnesses.

The security establishment knows where the bodies are buried, which means it can blackmail the political establishment.

Reform would also deprive the political establishment these services. The two establishments constitute what lawyers would call a joint criminal enterprise.

The third challenge is corruption. This has two dimensions. 

First, the policing is of itself an extremely lucrative avenue for corruption.

Many years ago when I led research for TI-Kenya, we found out that police corruption was not just systemic, as is the case elsewhere, it was also completely and uniquely institutionalised. 

The bribes collected on the street went all the way to the top. Motorcycles for instance commanded a hefty down payment and a daily fee.

Officers admitted taking out cooperative loans to finance a motorcycle allocation.  It has gotten worse.

In those days, only very senior officers were visibly living beyond their means.

These days, young police constables openly drive cars they clearly cannot afford on their salaries.

POLICE CORRUPTION

One of the consequences of this type of police corruption, which is more often than not pure extortion, is to undermine citizen’s cooperation with the police.

It is unrealistic to expect us to cooperate with people who see us as ATMs. The last time I reported a crime, a police officer took my phone number to update me on progress of the investigations. He also insisted I save his number and promised to call. When he called, it was not to update me on progress, but to ask me to assist him with school fees — Sh20,000 —  I stopped answering his calls and abandoned the case.

The second dimension is that a corrupt state cannot afford an honest and effective criminal justice system. 

It needs crooked cops or judges, both preferably. The political establishment has neither the interest nor the moral standing to fight police corruption.

As we speak, we have in high offices people with turkey sized drumsticks sticking out of their pockets.

With a halfway decent criminal justice system, these poultry lovers would have at the very least recorded statements, as we saw opposition leaders being pursued to do when they implicated prominent members of the government in the ill-fated Karen land grab.

The deck is clearly stacked against security sector reform. 

Yet, without reform, increased powers and resources will not combat insecurity.  Giving more power and resources to corrupt security services usually increases corruption. 

BRIBES MUST GO UP

As every Kenyan knows if an offence attracting a fine of Sh5,000 is increased to Sh50,000, the bribes must go up proportionately. The Gestapo powers that the Government is so keen to give the police is music to the ears of drug lords and other criminal users of police services.

Is security services reform then a lost cause?  Not necessarily. 

Up until 1993, the Central Bank of Kenya was one of the most corrupt institutions in the country.  In those days, foreign exchange control was the nerve centre of corruption. 

The political establishment used the exchange control to enrich themselves, reward cronies and punish their enemies.

Everybody in the control chain ate, right down to the messengers who moved papers. Clerks were as rich as Croesus.

Unsurprisingly, exchange controls were the last hold-out against liberalisation. 

It was only the macroeconomic crisis precipitated by Goldenberg and other 1992 election-related money printing scandals that forced the Government to liberalise in order to get an IMF bail-out. After liberalisation, the Central Bank quickly fell off the corruption radar. 

Today it is known for effective bank regulation and fostering financial inclusion (and cocking up monetary policy once in a while).

The analogy may not at first seem that close, but that’s only because we think of security as the quintessential government function that only a public police service can perform.  It is not.

REFORM THE POLICE

Many of the functions that the police do are also provided by the private sector. 

The most lucrative in terms of corruption can be performed by specialized agencies.

The establishment of a specialized anti-corruption service has already established a precedence in this regard.

Traffic enforcement can be taken over by an independent highway patrol authority.

 It could be argued that this is not a solution, since the new authority could be just as corrupt as the police. True. But it is not corruption problem we are trying to solve.

The objective is to reform the police and removing traffic enforcement is a hefty blow to the culture of corruption in the police service.

 Beyond that, a new organisation from scratch has a better chance of becoming a clean operation than trying to fight traffic enforcement corruption within the police system.

There is also considerable scope for injecting competition. 

For instance, it should be possible for victims of crime to engage private investigators, present evidence to a judge and obtain a warrant of arrest for the suspect.

Only then would the police come into the picture.

And should the police drag their feet or demand bribes, it should be possible to obtain authority from the courts to hire bounty hunters to apprehend suspects.

But perhaps the most effective assault on the security edifice would be devolution of local policing.  This would achieve two things.

First, locally accountable police services would be both more effective and responsive to citizens. 

Second, it would enable the national government to focus on building a smaller, modern, sophisticated police service with the capability to combat terrorism, organised crime, serious fraud and similar crimes, along the lines of the American FBI.

Moreover, depriving the national police of the extortion opportunities that regular policing affords would give it a chance to improve its standing in society, rebuild its brand so to speak, and in effect encourage citizen’s to cooperate with it.

The biggest challenge of security in Kenya is not legal powers or organisational capability but rather the security services’ legitimacy deficit.

VESTIGE OF COLONIALISM

As observed earlier, the security apparatus is a vestige of colonialism and its successor authoritarian post independent state.

For the longest while, we have held the military in considerable esteem, blind to the atrocities it regularly commits conducting punitive expeditions in northern Kenya.  No longer.

This deficit grows by the day.  In the last fortnight alone, vigilantes have laid siege on a road for three days.

The state and its security services were reduced to helpless onlookers.

It took “tribal” negotiations to end the siege.

Not far away from the siege, villagers, mostly women, have successfully deterred police on mission to rescue newly circumcised girls —a  criminal offence.

They pelted the police with stones and threatened to roll boulders down the hills. The police left, tails firmly between the legs. 

In Kilifi, unidentified raiders have killed a police officer and stolen a firearm. Just another day in paradise.

As for the hapless Jubilee government, it has spent the better part of two years putting on a resplendent display of avarice, ineptitude and empty rhetoric.

Despotism has been the missing piece of the Nyayo era repertoire. 

The repertoire is now complete. Ruruka rua kimbu ni rwa kimbu rutithiragwo ni mung’ung’uutu. (Chameleons will be chameleons. They will always have warts)

The reconfiguration of power by the new Constitution, in particular devolution and weakening the provincial administration, is a definitive death knell for the colonial authoritarian edifice.

What we are witnessing is an Antonio Gramsci moment, the interregnum of morbid symptoms when the old order is dying and the new cannot be born.

The draconian powers they now seek are the last kicks of a dying horse, the nakedness of leaders who, lacking in imagination and failed by their courage, want to return the people to Egypt.

We are not going back to Egypt. 

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