OPED: Kenyan MPs must reject attempts to undermine police oversight body

By Abdullahi Boru Halakhe

Imagine if police were given powers to deny the body that oversees them access to information. Would that oversight body be effective at its job? You must have answered no. This is exactly what will happen to the Independent Policing Oversight Authority (IPOA) if MPs endorse proposed change to the IPOA Act 2011, the law that governs the Authority’s operations.

The Statute (Miscellaneous Amendments) Bill, 2016, which sneaks in proposed amendments to the IPOA Act 2011, introduces an exception to Section 7(1)(vii) of the current Act, which gives the Authority the power to “summon any serving or retired police officer to appear before it and to produce any document, thing or information that may be considered relevant to the function of the authority”, by adding the words “provided that where the document, thing or information is privileged, the procedure for producing the privileged document, thing or information shall be complied with.”

The problem with this proposed amendment is that it does not specify what constitutes privilege, nor does it provide the procedure for IPOA to access the said privileged information.

As a result, the proposed amendment leaves room for mischief as it will give the police powers to decide what is privileged and, possibly as a result, obstruct IPOA’s investigations into their excesses. This will negate the very essence of IPOA’s functions, namely to conduct effective investigations into police misconduct and refer cases for prosecution of police officers to the Director of Public Prosecutions (DPP).

Need for accountability

IPOA was set up following the passage of the 2010 Constitution as part of efforts to reform the police and put an end to its long history of human rights violations. Since its establishment, it has investigated multiple human rights violations by police and referred cases to the DPP.

However, deaths during law enforcement operations have continued, making IPOA’s role even more important. For instance, statistics available to human rights organizations show that at least 177 people were killed by police in the first 10 months of 2016 alone.

On 22 August 2014 in Kinango, Kwale County, a 14-year-old schoolgirl, Kwekwe Mwandaza, was killed by the police. On 25 August 2014, IPOA commenced investigations to establish whether the police officers who shot and killed her were justified in the use of their firearms.

IPOA found that Kwekwe was killed by Kinango District Criminal Investigation personnel while conducting a search in her family’s house. IPOA recommended to the DPP that they should be prosecuted. They were subsequently convicted of manslaughter and sentenced to seven years in jail each.

IPOA also investigated the deaths of two students of Egerton University, Dennis Magomere and Felix Nyagena. During its investigations, IPOA found evidence it considered sufficient to refer the case to the DPP for prosecution on murder charges. The DPP has taken up the case.

Attempts to undermine

In 2015, the government unsuccessfully tried to push through an amendment to the IPOA Act, which would have undermined IPOA’s independence by withdrawing the Chair’s and Board members’ security of tenure. This would have made it possible for the Executive to sack them at will, without having to refer the case to a tribunal to investigate.  

IPOA has accused the Inspector General of Police (IGP), Joseph Boinnet, of instructing police officers not to cooperate with it in investigations of police officers. Interior Principal Secretary Karanja Kibicho has also accused IPOA of embarrassing and intimidating police officers.

IPOA performs the critical function of holding the police to account. The least we can expect is for the government to leave them alone to do their job.

The National Assembly must do the same by rejecting this proposed amendment. This will send a strong signal that it stands for police accountability.

Abdullahi Boru Halakhe is East Africa Researcher at Amnesty International

This article was first published in the Daily Nation on 17 February 2017 http://www.nation.co.ke/oped/Opinion/reject-bid-to-undermine-police-oversight-/440808-3816236-chf9dl/index.html