Traffic rules have changed, but the police have not

The Kenya Police force is in a sad state of affairs. The force is not alone, for they carry the Judiciary along. There is mutual frustration between these two spouses, the Police and the Judiciary; they cannot divorce for their marriage is unbreakable and eternal.

The Police force has been under tough scrutiny for quite a while. There seems to be nobody in Kenya able to do anything about it. The many police officers I know seem overwhelmed.

The vetting theatrics made matters worse. The process exposed astonishing levels of rot, and confirmed our deepest fears — nobody is ready or able to do anything about it.

Officers could not account for M-Pesa transactions worth millions of shillings. One declared he was broke, yet he could not account for transactions worth 20 million shillings. Another officer could not account for assets worth more than 60 million.

Some experts, and some policemen among them, are so worried about such a deep rot that for them it seems easier to start a new force and dismantle our Utumishi kwa Wote, little by little. It has become Malipo kutoka Wote.

Reconstruction is the result of sustained degeneration. It happens to countries, to institutions, to families, to roads…

WIDER SOCIETY SUPPORT

Definitely, maintenance is not our strong point. We are not good at maintenance. We let roads deteriorate so deeply that it is easier to rebuild them than to repair them.

This is also happening to some of our institutions, and specifically, to the police force. It could be stopped, but someone, somehow needs to start the change.

The Inspector-General and the chairman of the National Police Service Commission alone can do little. It needs the support of the wider society, of the government, of civil society, of partners… of every citizen.

It is not just “their” problem. It is “our” problem, and Jonah became part of it yesterday. He was arrested, and wasted his day trying to get out of a simple mess.

Jonah is one of the kindest law lecturers I have ever met. An expert in oil and gas law, he is patient, punctual and methodical, young and efficient. Jonah was traveling to Naivasha yesterday when he was arrested.

He was charged with over-speeding, even though I seriously doubt that his old car can reach more than 100kph. He was taken to court and arraigned. His morning was wasted. He looked dejected.

MORAL CONVICTIONS

For the first time, he told me, he felt like giving the solicited bribe. However, he thought it was better for his students and his honour… he didn’t pay. He appeared in court.

Jonah’s case is not unique. I know many a person with moral convictions. They will appear in court. It sounds absurd; why waste your time, money, patience and appear in court for a minor traffic offence?

Really, it makes no sense, until we realise that it is the biggest and most valuable personal source of income for police officers. Everyone knows that, few dare to say so.

Everyone knows that no investment, no matter how clever it is, can attract a profit of 60 per cent and above, unless it is drugs, theft, arms trafficking or gambling.

Perhaps the exception to this rule has been the relatively few jackpot successes of a few internet and software hits that spread worldwide in a matter of days, sometimes seconds. Certainly, no police business qualifies under this jackpot category.

Some weeks ago, the little child of a friend told me, “Let’s play thieves and robbers”. I did not realize at first what he had said, until it sadly hit me that there were no longer policemen in his version of the game.

RULES QUASHED

More than a year ago, the Chief Justice issued rules that expressly prevented the arrest of persons who had committed minor traffic offences. It gave the offender the possibility of paying the fine on the spot.

The rules were sadly quashed by a court decision that prevented the Chief Justice from giving instructions to the police. The Chief Justice’s jurisdiction was restricted to the courts… once the matter went to court. But it could not direct the police on what to do before the matter reached court.

This sad decision allowed the police to remain with the power to arrest any citizen for minor offences, and the fear of arrest remained the biggest earner for corrupt officers.

A few days ago, a new set of Minor Offences rules were gazetted. James Macharia, the Transport Cabinet secretary, established the penalties for minor offences. Sadly, the new rules still leave the power to arrest in the hands of the police.

Section 2 of the Rules read, “the minor traffic offences which may be dealt with…” and then refers to section 117 of the Traffic Act. The Rules strictly prohibit the payment of bails in form of hard cash.

WHO WILL DO SOMETHING?

So, it remains a mystery. Do we want to resolve a problem or not? Certainly, the Inspector-General is worried about the levels and depth of police corruption. So is the Cabinet secretary, everyone in the executive, in the police commission, in the Judiciary, in Parliament…

The question still remains: Who will do something? There are hundreds, perhaps thousands of Jonahs who end up in court every day. They slow down the justice system. They cost more to the country than the revenue that is collected through the fines.

While the Jonahs of the nation are being charged and admitting liability (there is no way of proving that the speed guns are calibrated), sexual predators are defiling minors and posting their deeds with pride.

Our magistrates are too busy with the minor traffic offences of the Jonahs of the nation. In fact, Jonah’s magistrate held his hearings first before looking into minor traffic offences. This made Jonah waste the whole morning.

The sad bit is that the solution is rather straightforward. All that is needed is a small amendment to the law and police commitment. Perhaps this is too much to ask from the cartels.

THE PRICE OF FREEDOM

If James Macharia, a few MPs, and Inspector-General Boinnet do it, they will go down in history as amazing anti-corruption warriors.

I dream of a fine mobile payment system. It would be so straightforward for the police and KRA to come together with a mobile service provider and some IT experts and design an app for this purpose.

Anyone committing a minor traffic offence would pay on the spot, without any cash transaction between the offender and the police, without any arrest. Certainly, this system should be well designed. This cannot be a repetition of Nairobi’s e-parking payment system.

This would help record-tracking, increase government revenues, enhance transparency and, most importantly, discourage bribing.

The only way to end corruption is by making it more expensive than honesty. Bribing will thrive for as long as policemen can arrest minor offenders. As of now, the price of freedom is far higher than the bribe. This has to come to an end!

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi