LAWS GOVERNING THEPOLICEIn lateAugust, the NPS Bill was passed by Parliament and assented to by PresidentKibaki. It has been reported that the NPS Commission Bill has also been passed.
This is good news, as once the two pieces of legislation have been published inthe Kenya Gazette (which, for some reason, has not been done yet), they willbecome operational.The othercritical piece of police reform legislation, the IPOABill, still needs to pass through the third reading and be assented to by thePresident. There is a dire need to prioritize the enactment of all the policereform legislation after the allegations raised by the Release PoliticalPrisoners Trust (RPPT) and the National Civil Society Congress last week.The RPPThas “recorded 15 separate incidents of extra-judicial killings in the recentpast”, and the government must take responsibility for the deaths. TheIndependent Legal Medico Unit and the Kenya National Commission on Human Rightshave raised the alarm after the death of a 16-year-old boy in Kabete.
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Thegovernment should take responsibility by ensuring an independent investigationinto the deaths.Ideally,the investigation should be the job of a qualified body independent ofgovernment and the police — the exact body proposed under the IPOA Bill. Theallegations highlight the fact that the Bill needs to be enacted fast — toguarantee that any officers found to have acted outside the law are held toaccount. These reforms will also help the police as community trust in theService will increase. For example, an independent investigation into a seriousinjury may find that the police officer was acting legally.If this isso, the community is more likely to believe the outcome of an independentinvestigation. Those officers found to have acted outside the law will be heldaccountable, meaning that once again, the reputation of the police willincrease.
In addition to the police reform legislation, the Witness ProtectionAct should also be reconsidered to ensure those that lodge a complaint with theIPOA or another investigatory body do not face retaliation.The RPPTbelieves that some of the extra-judicial killings recently documented arelinked to police silencing witnesses. The credibility of the Witness ProtectionAgency is critical in encouraging the public to report police violence.Like withthe boards of other key institutions, Parliament should consider amending theAct so that current MPs or key public service institutions do not sit on theBoard of the Agency1.
Regulation of Police Ofcourse, having been granted these privileges, it is important for society toclosely monitor those who exercise these powers. Temptation to engage in thesame activities that the police are supposed to prevent is very real andrequires this body of law in order to prevent individuals from contributing tothe problems of society rather than policing them. Police laws often mirrorconstitutional and human rights laws, in that these are often the areas policeare likely to stray. For example, an officer who has become frustrated with thecriminal justice system is prevented by police laws from beating confessionsout of suspects, just as that suspect has a human right against such treatment2.A– CONDITIONS AS TO THE USE OF FORCE1.A police officer shall always attempt to use non-violent means first and forcemay only be employed when non-violent means are ineffective or without anypromise of achieving the intended result.2.The force used shall be proportional to the objective to be achieved, theseriousness of the offence, and the resistance of the person against whom it isused, and only to the extent necessary while adhering to the provisions of thelaw and the Standing Orders.3.When the use of force results in injuries—(a) the police officers present shall provide medical assistance immediatelyand unless there are good reasons, failing to do so shall be a criminaloffence; and(b) shall notify relatives or close friends of the injured or affected persons.4.A police officer who uses any form of force shall immediately, report to theofficers’ superior explaining the circumstances that necessited the use offorce and the supervisor shall judge the rightfulness and decide on the nextstep, subject to these regulations.5.Any use of force that leads to death, serious injury and other graveconsequences shall be reported immediately by the officer in charge or anotherdirect superior of the person who caused the death or injury, to the IndependentPolice Oversight Authority who shall investigate the case.6.The Inspector-General shall not be precluded by virtue of paragraph (5) fromconducting investigations into the matter.7.A police officer who makes a report to the Independent Police OversightAuthority in accordance with paragraph (5) shall—(a) secure the scene of the act for purposes of investigations; and(b) notify the next of kin, their relative or friend of the death or injury assoon as reasonably practical.8.It shall be a disciplinary offence for a police officer to fail to report inaccordance with these regulations.9.An officer shall not tamper or otherwise damage any evidence from the scene ofthe act.10.A Police officer in uniform shall at all times affix a nametag or identifiableService number in a clearly visible part of the uniform11.Following the orders of a superior is no excuse for unlawful use of force.12.The Cabinet Secretary responsible for Internal Security and theInspector-General shall make regulations for giving further direction on thelawful use of force, and the regulations shall include, among other things—(a) a list of lawful means to use force;(b) training requirements to be allowed to use these means;(c) procedures for reporting the use of the means of force, indicating whetherthe use of such means was necessary or not.B– CONDITIONS AS TO THE USE OF FIREARMS1.Firearms may only be used when less extreme means are inadequate and for thefollowing purposes—(a) saving or protecting the life of the officer or other person; and(b) in self-defence or in defence of other person against imminent threat oflife or serious injury.2.An officer intending to use firearms shall identify themselves and give clearwarning of their intention to use firearms, with sufficient time for thewarning to be observed, except—(a) where doing so would place the officer or other person at risk of death orserious harm; or(b) if it would be clearly inappropriate or pointless in the circumstances.3.A police officer shall make every effort to avoid the use of firearms,especially against children.4.Any use of firearm, even if there’s no injury, shall immediately be reported tothe officer’s superior.5.Any use of fire arms that leads to death, serious injury and other graveconsequences shall be reported by the officer in charge or another directsuperior of the person who caused the death or injury, to the IndependentPolice Oversight Authority who shall investigate the case.6.The Inspector-General is not precluded by virtue of paragraph (4) fromconducting investigations into the matter.7.A police officer who makes a report to the Independent Police OversightAuthority in accordance with paragraph (4) shall—(a) secure the scene of the act for purposes of investigations; and(b) notify the next of kin, their relative or friend of the death or injury assoon as reasonably practical.8.The Cabinet Secretary in consultation with the Inspector-General shall makefurther regulations on the use of firearms which shall include regulations—(a) that specify the circumstances under which police may carry firearms andthe type of firearms and ammunition permitted;(b) that prohibit firearms and ammunition that cause unwarranted injury orpresent unwarranted risk;(c) to regulate the control, storage and issuing of firearms, includingprocedures that ensure that officers are accountable for the weapons andammunition issued to them (in principle; don’t allow to take fire arms home andofficers are provided by their superior with a fixed amount of ammunition andhave to explain at any time when requested if bullets are missing);(d) for the selection, training and testing of officers authorised to carryfirearms including techniques that could diffuse tension and reduce thelikelihood of the need to use force in order to ensure that firearms are usedappropriately and with the least risk of causing unnecessary harm;(e) to provide for testing of officers carrying fire arms at regular intervals,but at least once a year;(f) and provide for consequences when failing the test referred to underparagraph (e) which shall at least include that failing to pass the test shallresult in losing the right to carry fire arms until the officer does pass thetest; and(g) provide for a reporting system whenever officials use firearms in theperformance of their duty.C– SPECIFIC RESPONSIBILITIES OF SUPERIORS1.Superior officers should do everything in their power to prevent unlawful useof force or firearms, and when such unlawful use of fire arms does occur, theyshould report this immediately to the Independent Police Oversight Authorityand to the Inspector-General.2.(1)Refusing to carry out orders that include unlawful use of force should not bepenalized and should not be a disciplinary offence.(2)Giving an order that would lead to the unlawful use of force is a disciplinaryoffence and may amount to a criminal offence.(3)The station commander, or any other relevant direct superior, shall,immediately after the death or serious injury of a person who at the time ofhis death or injury, was in police custody or under the control of the Policeor in any way the death or serious injury was the result of police action orinaction which includes anyone who may have been injured or killed being abystander during a police operation—(a) take all steps to secure evidence which may be relevant to that death;(b) immediately report the case to the Independent Police Oversight Authority,using the means of communication that guarantee there will be the least delay,and confirm this in writing no later than within 24 hours after the incident;(c) supply the Independent Police Oversight Authority with evidence of and allother facts relevant to the matter, including, if available, the names andcontact details of all persons who may be able to assist the Independent PoliceOversight Authority should it decide to conduct an investigation; and(d) non-compliance with the above shall be an offence3.1Daily Nation2https://www.hg.org/police-law.html3https://roggkenya.org/areas-for-media-coverage-in-good-governance-and-corruption-in-kenya/securitypolice/police-use-of-force-rules-in-kenya/