Whose Police? A Critical Review of the Police Conducts and the Reforms of the 2010 Constitution
Austine Ochieng
Agricultural & Biosystems Engineer, GE | Data Analyst | Leadership Trainer | Leadership & Community Development Enthusiast
Kenyan history is marked by multiple accounts of police injustices. These include painful accounts of extrajudicial killings, abductions, and harassment by police. These events have, unfortunately, become a constantly recurrent theme in our history. The event of 1969 is recorded as one of the earliest of such cases, when the police opened fire against protesters in Kisumu under the leadership of Mzee Jomo Kenyatta, killing nearly a hundred people, some of whom were several miles away from the protest scenes. Similar incidents have since unfolded repeatedly, including the abductions and killing of prominent and some rookie political figures who have openly criticized the governments of the day.
The recent Gen Z protests were akin to the bloody anti-government protests of the 1980s against the Moi regime. The protesters, predominantly composed of the Kenyan youth, the Gen Zs, were shot at by the police regardless of their loud claims as to be peaceful. Hundreds of them were killed, including volunteering medical practitioners who were diligently providing care to the injured. Others were forcibly abducted from their homes and on the streets by armed men and taken to police stations, including vocal activists like Bob and the two Kitengela brothers. Government critics and student activists were also abducted unlawfully and tortured.
In light of all this, perhaps the most over-aching question and concern is: What is the role of the police as outlined in the new Kenyan Constitution following the 2011 police reforms package? Moreover, who are the police serving, the politicians, the public, or the president? Despite our efforts to come up with comprehensive police reforms in the new Constitution, which redefined the Kenya Police as a service to the people rather than a force under Article 243, there has been very minimal change in police practice. Research still shows that the general police-public relations, which was perhaps one of the most significant pillars of the reforms, remain severely strained, with police brutality still on the rise.
The new Constitution, which the people overwhelmingly voted in, required the police service to be independent of political interference, prevent corruption, ensure professionalism and accountability, and uphold human rights and the rule of Law. The Constitution mandated accountability from the police and for them to have these principles in practice. Additionally, it sought to address the underlying disparities that were undermining the welfare of the police and provided for their salary improvement and enhanced living conditions. The new Constitution sought to make the police more effective and more accountable by the promised establishment of independent oversight institutions and a solid unified command. All these were to be made possible after the passing of three laws which were to ensure the implementation of these principles, as found in the National Police Service;
According to Gjelsvik, these reforms aimed to transform the police organization into a more professional and people-centered police service. In fact, according to the NPS Community Policing Information Booklet, police transformation is defined as follows: “A fundamental shift from a police-centric to people-centered policing.” In his swearing into office as Kenya’s first Inspector General of Police, Mr. David Mwole Kimaiyo assured Kenyans that the police would harmoniously work with the community to ensure a safe and secure Kenya. Even today, the mission statement of the NPS is; “To provide professional police service through community partnership and upholding the rule of law for a safe and secure society.” The efforts to boost police-public trust through the Community Policing (COP) models were enhanced by establishing the National Police Service’s Community Policing Structures and the famous Nyumba Kumi initiative, which President Kenyatta introduced after the Westgate Mall attack in 2013.
However, as Gjelsvik points out, very little progress has been made, and the principles of the police reforms have since remained just words on paper. This has been demonstrated over the years and in the most recent Gen Z protests, where police conduct was clearly at variance with the reform principles. Also, contrary to the objectives of the reforms, the police have remained one of the most corrupt public entities in the country, according to public opinion polls. Many members of the public and even the police view the police as a threat to the people rather than a service, with many crimes being associated with the police.
The recent protests further increased public distrust and resentment of the public towards the police, with police directly killing unarmed, peaceful protesters whose only wrong was to exercise their constitutional right to picket, demonstrate, and protest as enshrined under Article 37 of the 2010 Constitution. Even more severely, the police brutally invaded residential areas, firing live bullets recklessly, killing hundreds of people. Many were abducted as well. Some have been untraceable missing up until now, while some were released and testified of torture and forceful questioning.
Despite all the evidence of the violations, accountability has annoyingly remained elusive, again contrary to the reform principles that required accountability in the police service. In fact, in a recent unfortunate incident, the Deputy Inspector General of Police was charged with six months imprisonment with contempt of court after defying multiple court orders summoning him to give an account as to the whereabouts of the missing abductees.
These events have loudly spelled out the failure to implement the over-a-decade-old comprehensive police reforms. This raises the question: Why have we yet to achieve the intended objectives despite establishing the necessary structures to implement these reforms?
As to the question of who the police should serve – the state or the public – Magn?s argues that two different police paradigms would help us to understand the functions and roles of the police, especially regarding whom they are accountable. She argues that, first, the role of the police could be to protect the state strictly. Thus, the public is cut out from the equitable share of police services. In this case, the police strictly serve and are only accountable to the power holders. On the other hand, the police are to serve and protect members of the public, making them accountable to the public.
Although, in police practice, there is not a strict distinction between these two paradigms, and in practice, police systems bear all the functions, but to variable extents, I would argue that in Kenya, the police have been overwhelmingly biased toward serving the state and not the public, which is contrary to their constitutional mandate. In a democracy like Kenya, the police should be accountable to the people and strictly provide services and protection to the people – this includes the political class as members of the republic sharing similar services as the people.? However, this has failed, and, therefore, political interference remains one of the major impediments to the implementation of the police reforms enshrined in the new Constitution, despite the establishment of the necessary structures meant to enforce these reforms.
According to Gjelsvik, the objectives of the Kenya Police reforms – to transform the police organization into a more people-centric service and to increase public accountability of the police – would likely erode political influence. This reduction of political control would not serve the interests of the ruling power, including the president and other political powerholders. Additionally, the Community Policing (CoP) models have only been used to enhance surveillance and intelligence gathering from the public to protect the ruling power rather than the public. Consequentially, the failure to fully implement these reforms, which would potentially transform the police service, has been a deliberate strategy to continue containing the police under the control of state leaders. This undermines democracy and accountability extensively.
In order for these reforms to take effect, I suggest the following:
First, politicians must lead by example in respecting the democracy of our country and upholding the rule of Law. The police, like any other government institution, reflect and mirror the actions of the political leaders. If the leaders are corrupt and defiant to the rule of Law, as we have seen in several instances, the police are highly likely to follow suit. Moreover, this must be done both in words and deeds; their actions must not be at variance with their words. In the same vein, if the state leaders uphold the rule of Law, there will be fewer or no barriers to implementing the reforms that would transform the police organization that serves the people well, resulting in a better governance of the people of Kenya, with peace, accountability, and transparency. It is not enough for the police to arm themselves with weapons only; instead, they must arm themselves with every word of the Constitution, upholding each syllable to the core. As the former Chief Justice, Willy Mutunga, once said, “The credibility of the service is not secured by force of arms alone but by the authority of every officer to uphold the law, to do what is just and right for all of us.” The Law is paramount!
Second, the police should redefine who the real enemy is. The police are trained to perceive the public as their enemy. How will you effectively protect the person you have already declared an enemy? Impossible. This explains why protest results in mass killings despite their peaceful nature. Recently, police were caught on camera severely beating an unarmed student of the Multimedia University – four officers against one. They broke his legs, left him helpless, and lobbed a teargas canister next to his head, narrowly missing him. Similar incidences of police brutality have been witnessed against doctors, teachers, and nurses exercising their constitutional rights. The reason is apparent: the police have declared the public their enemy, and any provocation, direct or indirect, is met with violence. However, this mindset must be stopped. The police should realize that we are all equal citizens of our beloved country, deserving to be protected, not abused. And that the public is by no means their adversary unless there is an offense.
Third, the police must drop their unnecessary egoistic superiority complex. The police are not “little gods,” and the public are mortals. We are all members of this nation and should equally cherish and love it. Like the body, with its various parts playing different roles, we are all equal, only playing different roles. Community Policing models cannot be successfully implemented and functional if the public still views the police as untouchable, fearsome figures because they present themselves as such. Instead, the police should be approachable and friendly, serving the people as mandated by the Constitution.
Finally, police training must be modeled to prioritize service to the public rather than state protection. The police in Kenya and many other African jurisdictions are trained on a heavy state protection mandate and less emphasis on providing services to the people. With this training, bias in practice is inevitable. However, as we discussed earlier, this is a deliberate strategy that undermines democracy. If police training focuses more on serving the people, they certainly will. As the holy Bible says, “Train up a child in the way he should go, and when he is old, he will not depart from it.” Similarly, if the police are trained to serve the public, they will not depart from that when in practice.
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