Chiefs, their assistants and village elders may soon have sweeping powers over the operations of police officers within their jurisdiction if Parliament passes proposed amendments to the National Police Service Act.
In what looks like the reintroduction of the abolished provincial administration through the back-door, the bill proposes to give village elders, assistant chiefs, chiefs all the way to county and regional commanders, the powers to command and deploy police officers regardless of their ranks in service without necessarily getting the nod of the Inspector General (IG).
If the bill sails through in its current form, it will drastically dilute the independence of the office of the IG contrary to Article 245 (2) of the constitution and cause more confusion in the operations of the service.
Article 245 (2) provides that the IG shall exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.
The bill targets seven sections in the NPS Act – the preamble, new definitions of Service Delivery Unit and National Government Administrative Officer, deployment of the police, county policing authorities, the police service disciplinary board and the community policing.
Although the police, just like the other security agents, are subordinate to civilian authority under the NPS Act, the bill proposes inclusion of Article 239 (5) of the constitution, which will effectively expand civilian authority over the police to include the village elders, chiefs, their assistants and bosses at the county and regional level.
“An Act of Parliament to give effect to Articles 243, 239 (5), 244 and 245 of the constitution, to provide for the operations of the National Police Service; and for connected purposes,” the bill, which has not been owned but is believed to be from the government, reads.
“National Government Administrative officers shall be responsible for overseeing police service under their respective Service Delivery Administrative boundaries in accordance with Article 239 (5) of the constitution and any other written law,” it adds.
Amnesty International-Kenya in a statement has already opposed the bill alongside Leader of Majority in the National Assembly Aden Duale (Garissa Township) and Mr Demas Kiprono of the Police Reform Working Group.
“The subordination to civilian authority via an Act of Parliament must not be contrary to the Constitution. The independence of the IG connotes the state or condition of being free from dependence, subjection or control,” Amnesty says.
Command, according to Amnesty International, means an order, imperative direction, or behest to direct with authority, power to dominate and control.
“Command, under the constitution, is a preserve of the authority of the IG only. To the extent that the proposed inclusion intends to justify the interference with the independent command of the IG outside of, or contrary to the stated constitutional provisions, it is unconstitutional.”
In attempting to sneak in the abolished provincial administration, the bill proposes to create new terms – Service Delivery Unit (SDU) and the National Government Administrative Officer.
It defines the SDU as an institutional framework for execution of functions of national government including functions of the police service under this act and in any other written law.
“This simply means that the services of police officers in each of the service delivery units of the national government, which are the former provincial administration structures, will be controlled by the successors of the provincial administration from county commissioner to sub-chief,” Mr Kiprono says.
He notes that the control of the police regardless of rank could be even lower – the village elders.
“This is based on the fact that the Act provides that any other national government administrative officer in respect of a service delivery unit can be appointed as a national government administration officer,” he says.
Section 14 of the National Government Coordination Act provides for service delivery coordination units and the CS in charge may, with the approval of the President and by a notice in the Gazette, establish national government service delivery coordination units.
The law provides that the locations and sub-locations in existence immediately before the commencement of this Act shall continue to exist as national government service delivery units.
The bill further defines a National Government Administrative Officer as an officer responsible for administration of a service delivery unit within the administrative boundary – chiefs and their assistants.
Section 6 of the NPS Act provides that the police service shall be deployed in Kenya for the performance of the functions specified in the constitution, this Act or any other law.
Section 6 (2) provides that the National Security Council may, in case of an emergency, deploy the service in the Defence of Kenya.
But the bill wants this amended such that the deployment of police service shall be done with respect to the administrative boundaries “created for execution of national government functions referred herein as service delivery units.”
Although the bill has not been owned, Mr Duale denied the possibility of it being government-sponsored, saying that he will oppose it once introduced in the House.
Introduction of government bills in the current pure presidential system is a bipartisan affair, meaning that such bills can be tabled in the National Assembly or Senate by respective Leaders of Majority or their minority counterparts.
“I can only receive a bill if it is government-sponsored, from the Office of Attorney-General. Such bills must have been approved by Cabinet with a memo clearly attached with a cover letter from the AG’s office explaining it,” Mr Duale said.
He continued; “Those pushing this bill are just wasting their time.”
According to Mr Kiprono, if passed as proposed, it will have the effect of ensuring that deployment of police officers will conform to the national government service delivery units or former provincial administration structures.
“The proposal suggests that once police officers are deployed, they will serve under the said national government administration officer be they a regional commissioner or an assistant chief regardless of rank of the police officer deployed in their service delivery unit,” Mr Kiprono says.
Amnesty International says interfering with the independent command of the IG by introducing new structures is unconstitutional as it elevates “provincial administration” to command police officers.
Article 243 of the constitution provides for the establishment of the National Police Service, article 244 provides for the objects and functions of the police service while Article 245 spells out the command of the National Police Service.
Mr Kiprono argues that while the police service, just like any other national security organ, is subordinate to civilian authority, the Constitution prescribes instances in which civilian authority can exercise power over the police.
He notes that civilian authority is exercised in the appointment of the IG and in the issuance of lawful directions to the IG.
Article 245 (4) gives the Cabinet Secretary responsible for police services powers to lawfully give a direction to the IG with respect to any matter of policy for the police service.
The civilian authority is also exercised over the IG by the Director of Public Prosecutions (DPP) in giving directions to investigate information or allegation of criminal conduct and through the National Security Council (NSC).
The council exercises supervisory control over national security organs.