LAWS President. There is a dire need to prioritize

LAWS GOVERNING THE
POLICE

In late
August, the NPS Bill was passed by Parliament and assented to by President
Kibaki. 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 in
the Kenya Gazette (which, for some reason, has not been done yet), they will
become operational.

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The other
critical piece of police reform legislation, the IPOA
Bill, still needs to pass through the third reading and be assented to by the
President. There is a dire need to prioritize the enactment of all the police
reform legislation after the allegations raised by the Release Political
Prisoners Trust (RPPT) and the National Civil Society Congress last week.

The RPPT
has “recorded 15 separate incidents of extra-judicial killings in the recent
past”, and the government must take responsibility for the deaths. The
Independent Legal Medico Unit and the Kenya National Commission on Human Rights
have raised the alarm after the death of a 16-year-old boy in Kabete.The
government should take responsibility by ensuring an independent investigation
into the deaths.

Ideally,
the investigation should be the job of a qualified body independent of
government and the police — the exact body proposed under the IPOA Bill. The
allegations highlight the fact that the Bill needs to be enacted fast — to
guarantee that any officers found to have acted outside the law are held to
account. These reforms will also help the police as community trust in the
Service will increase. For example, an independent investigation into a serious
injury may find that the police officer was acting legally.

If this is
so, the community is more likely to believe the outcome of an independent
investigation. Those officers found to have acted outside the law will be held
accountable, meaning that once again, the reputation of the police will
increase. In addition to the police reform legislation, the Witness Protection
Act should also be reconsidered to ensure those that lodge a complaint with the
IPOA or another investigatory body do not face retaliation.

The RPPT
believes that some of the extra-judicial killings recently documented are
linked to police silencing witnesses. The credibility of the Witness Protection
Agency is critical in encouraging the public to report police violence.

Like with
the boards of other key institutions, Parliament should consider amending the
Act so that current MPs or key public service institutions do not sit on the
Board of the Agency1.

Regulation of Police

 

Of
course, having been granted these privileges, it is important for society to
closely monitor those who exercise these powers. Temptation to engage in the
same activities that the police are supposed to prevent is very real and
requires this body of law in order to prevent individuals from contributing to
the problems of society rather than policing them. Police laws often mirror
constitutional and human rights laws, in that these are often the areas police
are likely to stray. For example, an officer who has become frustrated with the
criminal justice system is prevented by police laws from beating confessions
out of suspects, just as that suspect has a human right against such treatment2.

A
– CONDITIONS AS TO THE USE OF FORCE

1.
A police officer shall always attempt to use non-violent means first and force
may only be employed when non-violent means are ineffective or without any
promise of achieving the intended result.

2.
The force used shall be proportional to the objective to be achieved, the
seriousness of the offence, and the resistance of the person against whom it is
used, and only to the extent necessary while adhering to the provisions of the
law and the Standing Orders.

3.
When the use of force results in injuries—
(a) the police officers present shall provide medical assistance immediately
and unless there are good reasons, failing to do so shall be a criminal
offence; 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 the
officers’ superior explaining the circumstances that necessited the use of
force and the supervisor shall judge the rightfulness and decide on the next
step, subject to these regulations.

5.
Any use of force that leads to death, serious injury and other grave
consequences shall be reported immediately by the officer in charge or another
direct superior of the person who caused the death or injury, to the Independent
Police Oversight Authority who shall investigate the case.

6.
The Inspector-General shall not be precluded by virtue of paragraph (5) from
conducting investigations into the matter.

7.
A police officer who makes a report to the Independent Police Oversight
Authority 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 as
soon as reasonably practical.

8.
It shall be a disciplinary offence for a police officer to fail to report in
accordance with these regulations.

9.
An officer shall not tamper or otherwise damage any evidence from the scene of
the act.

10.
A Police officer in uniform shall at all times affix a nametag or identifiable
Service number in a clearly visible part of the uniform

11.
Following the orders of a superior is no excuse for unlawful use of force.

12.
The Cabinet Secretary responsible for Internal Security and the
Inspector-General shall make regulations for giving further direction on the
lawful 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 whether
the use of such means was necessary or not.

B
– CONDITIONS AS TO THE USE OF FIREARMS

1.
Firearms may only be used when less extreme means are inadequate and for the
following 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 of
life or serious injury.

2.
An officer intending to use firearms shall identify themselves and give clear
warning of their intention to use firearms, with sufficient time for the
warning to be observed, except—
(a) where doing so would place the officer or other person at risk of death or
serious 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 to
the officer’s superior.

5.
Any use of fire arms that leads to death, serious injury and other grave
consequences shall be reported by the officer in charge or another direct
superior of the person who caused the death or injury, to the Independent
Police Oversight Authority who shall investigate the case.

6.
The Inspector-General is not precluded by virtue of paragraph (4) from
conducting investigations into the matter.

7.
A police officer who makes a report to the Independent Police Oversight
Authority 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 as
soon as reasonably practical.

8.
The Cabinet Secretary in consultation with the Inspector-General shall make
further regulations on the use of firearms which shall include regulations—
(a) that specify the circumstances under which police may carry firearms and
the type of firearms and ammunition permitted;
(b) that prohibit firearms and ammunition that cause unwarranted injury or
present unwarranted risk;
(c) to regulate the control, storage and issuing of firearms, including
procedures that ensure that officers are accountable for the weapons and
ammunition issued to them (in principle; don’t allow to take fire arms home and
officers are provided by their superior with a fixed amount of ammunition and
have to explain at any time when requested if bullets are missing);
(d) for the selection, training and testing of officers authorised to carry
firearms including techniques that could diffuse tension and reduce the
likelihood of the need to use force in order to ensure that firearms are used
appropriately 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 under
paragraph (e) which shall at least include that failing to pass the test shall
result in losing the right to carry fire arms until the officer does pass the
test; and
(g) provide for a reporting system whenever officials use firearms in the
performance of their duty.

C
– SPECIFIC RESPONSIBILITIES OF SUPERIORS

1.
Superior officers should do everything in their power to prevent unlawful use
of force or firearms, and when such unlawful use of fire arms does occur, they
should report this immediately to the Independent Police Oversight Authority
and to the Inspector-General.

2.

(1)
Refusing to carry out orders that include unlawful use of force should not be
penalized and should not be a disciplinary offence.

(2)
Giving an order that would lead to the unlawful use of force is a disciplinary
offence 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 of
his death or injury, was in police custody or under the control of the Police
or in any way the death or serious injury was the result of police action or
inaction which includes anyone who may have been injured or killed being a
bystander 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 all
other facts relevant to the matter, including, if available, the names and
contact details of all persons who may be able to assist the Independent Police
Oversight Authority should it decide to conduct an investigation; and
(d) non-compliance with the above shall be an offence3.

1
Daily Nation

2https://www.hg.org/police-law.html

3https://roggkenya.org/areas-for-media-coverage-in-good-governance-and-corruption-in-kenya/securitypolice/police-use-of-force-rules-in-kenya/

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