"Role of the Police in the Administration of Justice" ( PDF

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International Federation for Human Rights Kenya Human Rights Commission Report

LEGAL COOPERATION PROGRAMME FIDH - KHRC

Kenya Role of the Police in the Administration of Justice

I. Introduction ...... 5

II. Preparatory Mission: 6-10 November 2000, Nairobi...... 8

III. Workshop on the Role of the Police in the Administration of Justice: 2-6 April 2001, Nairobi ...... 10

IV. Recommendations adopted at the KHRC-FIDH Workshop on the Role of the Police in the Administration of Justice 2 - 6 April 2001 ...... 16

V. Follow-up Mission of FIDH-KHRC: 13-15 November 2002, Nairobi ...... 19

VI. 2003: Way forward for police reform in Kenya - a new dawn? ...... 24

n°375/2 - November 2003 This programme benefited from the support of the European Commission (European Initiative for Democracy and Human Rights), the French Ministry of Foreign Affairs and the Westminster Foundation for Democracy. Kenya Role of the Police in the Administration of Justice

Summary

I. Introduction ...... 5

1. Description of the Legal Cooperation Programme (LCP) ...... 5 2. Presentation of Kenya Human Rights Commission (KHRC)...... 5 3. Kenya: Historical background...... 6

II. Preparatory Mission: 6-10 November 2000, Nairobi...... 8

1. Meeting with donors...... 8 2. Meeting with authorities...... 8 3. Meeting with Standing Committee of Human Rights...... 8 4. Meeting with NGOs...... 9 5. Conclusion of the preparatory mission ...... 9

III. Workshop on the Role of the Police in the Administration of Justice: 2-6 April 2001, Nairobi ...... 10

1. Introduction ...... 10 2. General remarks ...... 10 3. Opening ...... 10 4. Workshop ...... 12 5. Closing ceremony ...... 15 6. Press coverage...... 15

IV. Recommendations adopted at the KHRC-FIDH Workshop on the Role of the Police in the Administration of Justice 2 - 6 April 2001 ...... 16

1. To the Police: Police Control and Monitoring...... 16 A. Short-term Objectives...... 16 B. Long-term objectives ...... 16 2. Community Policing ...... 16 3. To the Electoral Commission ...... 17 4. To the Prisons Department ...... 17 5. On challenges ahead, freedom of expression and 2002 elections in Kenya ...... 18

V. Follow-up Mission of FIDH-KHRC: 13-15 November 2002, Nairobi ...... 19

1. Introduction ...... 19 2. Context of the mission ...... 19 3. Meeting with authorities ...... 19 4. Monitoring the Recommendations adopted at the KHRC-FIDH Workshop on the Role of the Police in the Administration of Justice 2 -6 April 2001...... 20 I. To the Police: Police Control and Monitoring ...... 20 A. Short Term Objectives ...... 20 B. Long-term objectives ...... 21 II. Community Policing ...... 21 III. To the Electoral Commission ...... 21 IV. To the Prisons Department ...... 21

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V. On challenges ahead, freedom of expression and 2002 elections in Kenya ...... 22 5. Conclusion ...... 23

VI. 2003: Way forward for police reform in Kenya - a new dawn? ...... 24

1. The new political dawn...... 24 2. Reforms on the police issue...... 24 3. Initiatives of the civil society: Analysis at the KHRC-CHRI Conference, 24 -25th April, 2003 ...... 24 4. Proposed suggestions for police reform in Kenya ...... 25 A) Reforms under the Constitution...... 25 B) Legislative Reforms ...... 25 C) Institutional Reform ...... 25

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I. Introduction

1. Description of the Legal Cooperation 2. Workshop The workshop normally takes place 2 months Programme (LCP) after the preparatory mission, and focuses on a particular theme. The workshop is set up in order to be conducive to The International Federation for Human Rights (FIDH) has dialogue. Each expert is professionally specialised in one of been conducting the Legal Cooperation Programme (LCP) the areas of the workshop's theme. Together, the team is since 1993 to strengthen the influence and capacity of composed of 2-3 from Africa, and 2-3 from elsewhere. Having human rights defenders vis-à-vis the government and the different experiences, these experts are best able to international community. Through the LCP, the FIDH provides complement each other on the various issues. The a forum of exchange between human rights defenders and participants usually do not exceed 50, with a good balance of State authorities on key human rights issues in the country. various human rights NGOs, lawyers, civil society The LCP responds to needs clearly identified by FIDH's local organisations, and government officials. The FIDH tries to partners. Themes have varied from the police and human ensure that representatives of governments are duly rights, the administration of justice (Kenya), the struggle mandated by the highest instances. The press is not invited against impunity (Chad), and the rights of Internally Displaced during the workshop except for the opening and perhaps the persons (IDPs) (Uganda). closing ceremonies. Finally, at the end of the workshop, human rights defenders and representatives of the The invited government representatives comprise the government jointly adopt Recommendations. The ministers, police, security forces, army, prison officials, establishment of a follow-up committee is encouraged, while magistrates, etc. These programmes are particularly effective emphasis is placed on the follow-up mission. thanks to the multidisciplinary character and the diverse geographical origins of FIDH experts, as well as the 3. Follow-up Mission Approximately 8 months after the professionalism of local partners. workshop, experts will evaluate the results of the workshop by verifying the implementation of the recommendations while The principle of the LCP is that the forum in the form of a at the same time identifying obstacles to their realisation. workshop is only a first step and that the outcome, the Meetings are held with the relevant high-level authorities, recommendations adopted at the end of the workshops, must NGOs concerned with the relevant theme and other be thoroughly pursued thereafter and during the phase of stakeholders. follow-up. During the workshop, emphasis is placed on international and regional human rights instruments, as well 2. Presentation of Kenya Human Rights as human rights mechanisms and recourse procedures. Commission (KHRC)

In the first phase 1993-1996, the FIDH conducted the LCP in The Kenya Human Rights Commission (KHRC) is an 14 other African countries mostly in western and central independent, non-profit making, membership non- Africa. governmental organization based in Nairobi, Kenya. The KHRC was formed in the United States of America in 1991 by In this second phase 2000-2003, FIDH conducts the LCP in Kenyan exiles and activists to specifically lobby for the respect 10 African countries, including Kenya, Uganda, Zimbabwe and of human rights and promotion of democratisation, several countries in the Great Lakes region. The LCP accountability and good governance in Kenya. generally encompasses three phases: In 1992, the KHRC sought registration in Kenya and was 1. Preparatory Mission The goal is to identify pressing human ultimately registered as an NGO under the NGO Co-ordination rights issues in the country to determine the theme of the Act, 1990 on January 20, 1994. workshop, by consulting high-level authorities on the theme of the LCP, emphasizing the element of dialogue and the Since then, the KHRC has consistently monitored and involvement of those responsible for human rights protection documented human rights violations in Kenya. Owing to the and enforcement. Finally, the preparatory mission allows the hostile political climate in Kenya, the KHRC has provided legal FIDH and its members to prepare for the workshop. hosting to human rights groups that have been denied

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registration by the Kenya government. Thus the Release were arrested, accused of being connected with a left-wing Political Prisoners pressure group (RPP), the Legal Resources opposition group. Foundation (LRF)1, the Citizens for Constitutional Change (4Cs), Muslims for Human Rights (MUHURI), operate as In 1988, President Moi was re-elected after introducing a projects of the KHRC although they are in practical terms highly criticised voting system (the right to a secret ballot was autonomous organisations. These legal covers, and the replaced by "queue" voting in preliminary elections), and subsequent collaboration with these organizations, have dismissing preliminary public elections. Following a protest on enabled these projects to have a lasting impact on the the irregularities of the election, opposition leaders were struggle for the respect for human rights and democratisation jailed without trial and a member of the government, who in Kenya. criticized the election irregularities, was forced to resign. The KANU Youth Group, used as pro-government activists, The strategic objectives of KHRC are: harassed opposition members and provoked riots in democratic demonstrations; in July 1990, the government 1. Reduce human rights violations in Kenya killed at least 20 people and arrested several hundreds of 2. Strengthen the human rights movement in Kenya others, including politicians, human rights defenders and 3. Hold state, institutions and individuals accountable for journalists, during an illegal demonstration. human rights violations 4. Raise awareness on human rights in Kenya In 1990, a new opposition party, banned by Moi, was formed 5. Place Kenya on a truly democratic trajectory under the name Forum for the Restoration of Democracy (FORD), led by Oginga Odinga, which immediately gained the The KHRC supports social, political, economic, and cultural public's support. Donor countries put pressure on the Kenyan change aimed at enhancing respect for the rule of law, the government to institute a multiparty system and suspended development of a society that upholds democratic values, a their economic aid to Kenya in condemnation of the political society aware of its rights and comes to their defence oppression and abuses of human rights. Moi finally gave in whenever threatened or attacked. In all its work, the KHRC is and the Constitution was changed, for the first time allowing committed to mainstreaming gender. registration of opposition parties.

3. Kenya: Historical background In 1992, politically instigated clashes broke out in the area of Molo, in the west central region, which left 2,300 people dead Independence from the British was formally declared in and 25,000 displaced. Due to internal conflicts, the FORD December, 1963. The country became a Republic in split into two fractions. In November 1992 the international December 1964, and Jomo Kenyatta, a leader of the freedom donor community ended its suspension of aid to Kenya. fighters who had been imprisoned by the British, became Benefiting from the weakness of the opposition, in December Kenya's first president. 1992, Moi was re-elected as President in Kenya's first multiparty election with only one-third of the vote. Foreign When Kenyatta died in 1978, he was succeeded by Daniel observers reported that KANU manipulated the voters and Toroitich Arap Moi, his former vice-president. In November elections. 1979, Moi won national elections, running as the sole candidate. In June 1982, the Republic of Kenya was officially In 1994, the FORD leader, Oginga Odinga, passed away. There declared to be a one party state by the ruling party KANU. were several other opposition parties which had participated Press censorship and political detentions increased, and led in the 1992 elections. The opposition parties formed a new to an attempted coup in August 1982, by the Kenyan Air coalition, the United National Democratic Alliance (UNDA), but Force, which killed 120 people, and was finally disbanded by which still had fierce internal disputes. In 1997, new the Moi government. Following the coup attempt, 12 people elections were held. Despite considerable intimidation of were sentenced to death and 900 sent to jail. opposition candidates, Moi won the elections with a little over 40% of the vote, and promised to get rid of corruption. In September 1983, Moi was re-elected for a second term, unopposed, with only 48% of the vote. The following years saw In August 1998, terrorists bombed the US embassies in increased dissent: student pamphleteering led to the closing Nairobi and Dar es Salaam, killing over 250 people and of the University of Nairobi, many members of parliament injuring more than 5000, illustrating Kenya's vulnerability.

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In June 2001, Moi formed the first coalition government in Kenya. During the year, several anti-corruption initiatives were started in order to win the confidence of the IMF. However, ethnic clashes erupted and the government remained passive. Moi decided to retire on very generous retirement benefits. Moi's two terms had come to an end and he was ineligible to run constitutionally.

At the December 2002 elections, KANU was routed by the coalition of opposition groups which formed the National Rainbow Coalition, led by Mwai Kibaki, following a campaign centred on an anticorruption platform. This has brought about a feeling of new optimism in the country.

1. Legal Resources Foundation has since 2002 registered as a Trust and is now independent of KHRC.

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II. Preparatory Mission: 6-10 November 2000, Nairobi

The preparatory mission took place from 6 to 10 November 2. Meeting with authorities 2000 in Nairobi, Kenya. In order to assess the feasibility of holding the legal cooperation programme, the FIDH arranged Assistant of the Minister of the President Hon. Marsden for a pre-mission assessment visit by Simia Ahmadi-Thoolen, Madoka FIDH East Africa Coordinator, Sam Tindifa, Makerere Hon Marsden Madoka being absent at the time of the University, Uganda, whilst the Kenya Human Rights mission, the FIDH delegation asked his assistant to brief him Commission (KHRC), the local FIDH member, and particularly that the FIDH had come to him prior to meeting the A-G, Chief Dr. Willy Mutunga, Executive Director, and Wambui Kimathi, Justice and the Police Commissioner, and that it is still hoped Programmes Co-ordinator, handled the strategy, logistics and that he can contact the delegation while in Nairobi. arrangements in Nairobi. Attorney-General Amos Wako The goal was to prepare the ground for the upcoming Hon. Amos Wako sincerely welcomed the initiative. The Workshop in early 2001: to examine themes, location, dates, delegation informed him of the persons met during the participants, etc, and to meet with stakeholders: authorities, mission, about the coordination committee thereafter, and donors, NGOs, and UN agencies in order to involve them as about the other on-going activities related to the programme much as possible in the programme. (Sida/ICJ, Standing Committee's on Human Right's civil society network). Amos stressed for FIDH-KHRC to ensure that At the first coordination meeting at KHRC, Mugambi Kiai, the Standing Committee be closely involved. The delegation Programme Officer at the time for KHRC, was present and gave him the LCP evaluation 93-96, and he asked for committed to help and ensure the follow-up and coordination material/reports on previous such programmes in Africa. of the Workshop. Amos also suggested that the Uganda Workshop be carried out before the Kenyan one, in order to benefit from that 1. Meeting with donors experience.

EU Christian Beck, Political Counsellor agreed to host the Chief Justice Bernard Chunga informal coordination meeting with KHRC, French embassy, The delegation informed him about the principle of the U.K embassy, and the Standing Committee on Human Rights workshop and its follow-up, to which he reacted with to support the request that authorities be well represented in enthusiasm. The meeting was very short and there was little the workshop. time for any in-depth discussion or planning. However, he had read the FIDH documents. He welcomed the initiative and was U.K. Ambassador Jeffrey James, and Rufus Drabble, Press & willing to cooperate in the follow-up of the preparatory Public Affairs. The Ambassador suggested that the EU take mission. the lead in this initiative and discouraged the delegation from using too much donor pressure on authorities. He 3. Meeting with Standing Committee of insisted on the 'soft non-critical approach' with authorities Human Rights when setting the tone for the workshop. He suggested that the Attorney General (A-G) be a starting point for access to Chairman Prof. Onesmus Mutungi & Executive Secretary authorities. He recommended that the press not exploit the Thuita Mwangi event for criticism. With 6 of the 10 Members during their Board meeting Note: The Standing Committee of Human Rights is the French Ambassador, Pierre Jacquemot; Premier Counsellor, national commission on human rights in Kenya. Yves Gounin. They were generally favourable to the programme, and reminded that Sweden would hold the EU The Delegation briefed them on the Workshop and asked for Presidency 1st half 2001, and that Nairobi in February 2001 their cooperation in order to ensure its success. They were would be busy with UN meetings. receptive and the Chairman said that the FIDH Workshop comes "at a good time" as they are planning a forum for civil society and NGO networks December or January, and that the

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two events could be linked. He suggested that the FIDH draw sensitising government officials (which FIDA has been doing) in the many bodies that deal with the administration of and to raise issues of domestic violence, how the police can justice, this being an opportunity for each governmental deal with it, prosecution, and legal assistance to poor victims. department to be informed of each other's functions. They She informed the delegation of a judges' training in April 2000 sounded a note of caution regarding the FIDH approach, to which FIDA was invited. Mrs Thongori was concerned about which is why the Delegation asked them to help to bridge with the level of magistrates' participation in the FIDH/KHRC the government. The Chairman asked the Delegation to come Seminar. The Delegation said that KHRC could check this to out clearly on which department is given what role during the an extent with the Chief Justice, Mr Chunga. As for lawyers, preparation of the Workshop. The Delegation asked them to the FIDH agreed to check with the Law Society of Kenya (LSK). assist in the follow-up Committee which in fact will address these questions. The FIDH also invited them to propose 5. Conclusion of the preparatory mission themes. Mr. Mwangi insisted for a skills-oriented program, though acknowledging that some judiciary officials lacked The November 2000 preparatory mission allowed the FIDH to understanding of human rights. Finally the Chairman asked meet and coordinate closely with its partner in Kenya for the that economic and social rights be part of the training. implementation of the LCP, the KHRC. It has also been the occasion to meet with the Kenyan authorities, donors, the 4. Meeting with NGOs Standing Committee on Human Rights and NGOs active in Kenya in the field of human rights. ICJ Executive Director Kagwiria Mbogori and Program Officer (Judiciary Program) Winluck Wahiu informed the delegation After thorough discussions on the theme for the workshop, it about their 1993-95 program on the Administration of was agreed, as suggested by KHRC, that it should focus on Justice, and the current Judiciary Program which includes 1) the police as there are so many human rights violations a national program "Judicial Reform", and 2) a regional one: committed by the police and that this would be a good "Access to Justice". They agreed with the approach of opportunity to invite such government officials around the engagement for the workshop. However, they warned about table with human rights activists. KHRC and FIDH realised the difficulty of ensuring adequate participation of the fully that the endeavour was risky, as there was of course no government (e.g. the difficulty of judges and magistrates guarantee to get the police to such a meeting, especially as, speaking in the same room). They suggested a theme to be at the time, KHRC was not appreciated by the government. "How can civil society work together with government", and emphasised that the workshop be the basis for sustainable The theme for the FIDH/KHRC seminar would be "The Role of action and long-term projects, therefore strengthening links the Police in the Administration of Justice". with governmental institutions for the promotion of human rights. The authorities met on this occasion welcomed the initiative of the seminar and encouraged it, in a spirit of cooperation. Refugee Consortium of Kenya Executive Director Abi Gitari and Legal Officer Rose Abi welcomed the initiative and gave a picture of the refugee situation in Kenya. They suggested the ratio of participants be more or less 50-50% of civil society and officials. She agreed to assist in identifying a high profile expert who is respected by government to present the refugee issues in Kenya. She also suggested to make the workshop participatory. She said not to be surprised if individual participants from the government are receptive depending on how the workshop is organised and the level of participation allowed for those officials (e.g. small working groups). She suggested refugee and immigration officials to participate (falling under the Ministry of Home Affairs).

FIDA Deputy Director/Head of Litigation Judy Thongori welcomed the programme as a perfect opportunity for

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III. Workshop on the Role of the Police in the Administration of Justice: 2-6 April 2001, Nairobi 1. Introduction much debate. The openness with which issues were tackled came as a surprise to both the police and all those present. From 2 - 6 April 2001, Nairobi, Kenya, 55 persons from The police endorsed the recommendations by the NGOs. The registered NGOs in the human rights sector based in Nairobi, attendance of the police gave the opportunity for human lawyers from other parts of the country and representatives of rights activists to build a dialogue and use the momentum for the British High Commission, Swedish Embassy, European greater cooperation with the police. Previous to the Commission, French Embassy, Electoral Commission, Prisons attendance of the police, the workshop focused on police and and Police department, attended the workshop, whose human rights issues and the formulation of recommendations purpose was to bring together representatives of the civil which could be accepted by the police and the relevant society and government authorities to exchange ideas on the authorities. role of the police in the area of administration of justice. The event was co-organised by the Kenya Human Rights 3. Opening Commission (KHRC), and the FIDH, represented by Simia Ahmadi (Chargée de Mission for East Africa) and Michael Dr. Willy Mutunga, Executive Director of KHRC made Ellman (Chargé de Mission), with the participation of Carla welcoming remarks. He strongly reiterated the need for the Van Maris, Police Commissioner in Rotterdam, Netherlands, respect of human rights and ending of police brutality. Simia Elderd de Klerk, from Police Training for South African Police Ahmadi of FIDH outlined the objectives of the conference. Services, and Kaleb Lameck, a lawyer with the Legal and Human Rights Centre in Tanzania. Swedish Ambassador Ms. Inga Bjork-Klevby, (Sweden holding the EU presidency), made a strong opening statement by 2. General remarks stressing the need for legal reform, denouncing police brutality, capital punishment and torture. She stated that Meetings with authorities: When the seats of the police were Sweden and the EU were willing to assist in fighting police empty on the first day of the workshop, FIDH and KHRC brutality and torture. She further informed the conference representatives contacted the authorities. Police that Sweden advocated for an independent judicial system Spokesperson Peter Kimanthi informed them that a meeting that treats each people equally while upholding democratic was confirmed with the Deputy Police Commissioner J.K. principles. She also mentioned that Sweden has a program Mwania the next day. with the law enforcement personnel and that the program will continue in conjunction with the Raoul Wallenberg Institute, The meeting was held on 5 April at the Police Headquarters. which had so far undertaken 2 training programmes with Mr. Mwania warmly received the delegation. Carla van Maris government officials responsible for the administration of emphasised that, as a police woman, she expected to meet justice with the aim to sensitise participants on issues related her counterparts and discuss police community matters as to the respect of human rights. well. Eldred de Klerk praised the recent human rights training guide for the police, and said he would like to share the South Thuita Mwangi Secretary to the Standing Committee on Africa experience with the Kenyan police. Mr. Mwania was Human Rights represented the Chair of the Standing happy to send a few senior policemen to attend the Committee Prof. Onesmus Mutungi. He commended the presentations of Carla and Eldred. And so they did: 15 senior organisers' joint efforts of organising the conference on the policemen and police women attended the conference, role of the police in the administration of justice. He said that though on the last day. his institution fully supported the initiative. According to him, the focus was extremely important not just to his organisation The police attendance: The police officers attended the but to those working in the area of human rights advocacy. conference on the last day, with 15 senior police officers in The theme is critical especially on the role of the enforcement attendance. The programme was readjusted to suit the personnel in the light of widespread excesses. The outcome situation. FIDH experts gave brief presentations on the police of the conference would be important for the administration and human rights, community policing and public order and of justice disorder. The presentations were well received and incited

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The keynote address was made by the Police spokesperson Mr. of the terrorist action. The problem that the police face Peter Kimanthi on behalf of the Police Commissioner Philemon include lack of support from the general public who are Abongo. His message was about the role and mandate of the always finger pointing at the police ; influx of refugees some police as a national force stressing the need for Kenyans to who come in with fire arms ; population growth ; and assist the police in dealing with the issue of insecurity. He unavailability of resources to enable the police work stressed that social development is not possible without effectively. security in the country. He asked why the security issue is so threatening and who is responsible for this situation. He called With regard to human rights, he said: "We hope that the upon citizens to stop blaming the police on insecurity and begin Police, guided by our Motto 'Utumushi Kwa Wote' (Service for acting on the issue. According to him, issue of security is of everyone) shall uphold the rule of law and apply it fairly and paramount concern. It should not concern the police alone but firmly without fear or favour, while ensuring the co-existence it should be the responsibility of all. As all aspects of life evolve amongst our people. We promise to act professionally, around security, social development will be elusive; politics will compassionately and courteously in the enforcement of all not thrive in a state of insecurity. laws and regulations with respect to human rights, cultural, religious and political diversity." He further said that the police priorities included reducing road carnage, control of banditry, drug trafficking and control

FIDH Chargés de mission with police representatives

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4. Workshop

PANEL 1: HUMAN RIGHTS AND THE POLICE

Human Rights in International Law should bear a positive attitude in their work and always Michael Ellman remember that they can only be successful if there is mutual trust and respect between citizens and themselves. Michael Ellman gave the history of human rights tracing it to the Universal Declaration on Human Rights of 1948. In 1966, The best solution in solving crime is effective policing where the United Nations adopted two other International the community co-operates and works with a police force that Conventions those on civil and political rights and on social, serves and protects them. She noted the absence of the economic and cultural rights. police at the beginning of the workshop.

The first generation rights are limited since it is states to bring The greatest threat to human rights was identified as crime complains against states and few governments were however the best solution is effective policing and prepared to bring complaints against other government. In community's involvement. The need for an approachable the European system, an optional protocol allows individuals police service with open communication was stressed. Proper to bring complaints against other States. He informed that records of the suspects and criminals should be maintained human rights NGOs could deliver counter reports based on in a database for access to records. An effective police service the situation of human rights in their particular country. Some personal tool kit must include integrity, accountability, UN mechanisms can examine individual communications and professionalism, honesty, respect and compassion. address recommendations to States, but they are not as effective as the European Human Rights Court since they lack compulsory mechanisms. Human rights law is beginning to bite though it is still at its infant stage. International justice for the most serious crimes is progressing and raises important hopes regarding the struggle against impunity.

On the issue of enforcement of human rights in a hostile environment: the European Convention provisions have become a part of British law making it possible for one to go directly to the British law courts and seek protection of rights under the convention.

Human Rights and the Role and Responsibility of the Police Carla van Marris, Police Commissioner (Netherlands)

Mrs van Marris emphasised that by observing human rights in the line of duty, the police officer does not mean that it makes the work soft. She attributed this to the misconception police have that by respecting human rights then policing will be seen as soft material therefore not fashionable to implement. She went further to say that for many police officers, when one talk of firearms then it implies that you are a "real" police officer.

She stressed that human rights should be a permanent feature in the police training. According to her, the police

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PANEL 2: PUBLIC ORDER AND THE POLICE

Freedom of assembly and election violence of punishment to those who seem to be in the opposition. He Mr Nyamu, Electoral Commissioner stated that the human rights situation with regard to the police in Tanzania was not as grave and consistent as in Commissioner Nyamu said the candidates had the freedom to Kenya, though police killings and police brutality had just meet with the voters and voters have the freedom to attend occurred in Zanzibar in January 2001 due to protest by meetings without interference. He further said that without opposition of election rigging. freedom, elections would be meaningless. However, he revealed that political violence during election time was Public Order and Disorder: the role and function of police - committed by government forces, election campaigners and Comparative study some politicians whom he referred to as worst keepers of Eldred de Klerk, Police training for South Africa Police peaceful electoral process. Electoral violence he said was a Services clear negation of democracy. He called upon all Kenyans to shun and condemn electoral violence and desist from making Mr de Klerk gave practical experiences with the police in his utterances that can bring about violence. Though there exists discussion on public order and disorder. According to him the a code of conduct on how candidates should conduct their police service should exist to maintain order in a proactive campaigns, many politicians do not abide by it. He also said way and not promote disorder. The police should not have a that the Commission sometimes lacks enforcement hostile relationship with the community, as is commonly the resources to effectively monitor the electoral process case. On the contrary the relationship between the police and activities. the public should be one of mutual trust. He was of the view that if police in Kenya are to move towards community The Police in Tanzania policing, then, they must see the process in three phases Kaleb Lameck, Legal and Human Rights Centre, Tanzania before the crime, during and after the crime with proper supervision. The police must always follow stipulated Mr Lameck gave a history of the situation in Tanzania from the procedure and in addition, when they say that they enforced time of independence. He said that the Constitution was law and order they must of necessity ask themselves whether made by the leaders without public participation. He revealed they facilitated the rights of the people. Any engagement of that in some instances, the police in Tanzania had used the police must be seen in 3 ways as indicated below: excessive force and tortured people to confess, often a form Learning

Procedure Substantive level II Common agreement Bias and effective Expectation, vision

Effect (trust, future relationship) The work of the police should be about service standards. The procedure in terms of expectation should not disempower people. The common agreement laid down on paper should guarantee the dignity of citizens and it has to be visionary.

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PANEL 3: PROBLEMS IN PRACTICE AND IN LAW

The complementary role of prisons and in enhancing the Mr M'Noti said that the existing laws need not be changed and administration of justice drew differences between a police state and police state as Mr Odongo, Commissioner of Prisons of the prisons follows. Police state is non partisan, it protects citizens, there is department no political interference; while a police state is overtly political, defender of the status quo even at the expense of legitimate Mr Odongo spoke mainly about the functions of the prisons change, and police are brothers and sisters to the executioner. department. He said that chaining of sick inmates to hospital beds was based on advice from the doctors. He said that in He went ahead to say that if the laws are not respected by the the prisons, separation of prisoners was done on the basis of police then we may move towards being a police state. He gender; juveniles were mixed with adults. He went ahead to identified some of the problems that face the police, notably say that visits were allowed to relatives, magistrates, medical the lack of clear political neutrality. Previously the Police officers, and the Standing Committee on Human Rights. Commissioner had security of tenure but this changed after independence paving way for political appointments. Police training service and engendering Secondly, there is a limited budget allocated making the Ms. Guchu, FIDA police ill equipped to deal or confront criminals because the criminals are equipped with more sophisticated weapons. The Ms Guchu identified the gaps and experiences in training the terms of service of the police force and training facilities are police FIDA has had since 1994. She said that the tone used poor; this compromises their commitment considering that by the police in dealing with those reporting cases was often they work under risky situations. unfriendly and rude hence the public especially women tend to avoid visiting police stations to report cases. The challenges ahead of the Constitutional review process and elections Some of the problems she identified in promoting human Mr Erastus Wamugo, legal consultant rights: the police do not have any formal training to handle domestic violence cases. 50% of the cases reported at FIDA Mr Wamugo said Kenya is faced with social problems in the are made against men working for the police force and armed country, lack of concrete consensus and legitimacy of the forces. This therefore makes it difficult for domestic matters Constitutional Review Commission, freedom of expression, to be followed up by the police. awarding licences for broadcasting and freedom of assembly. Electoral violence is another problem that he identified. Police training is inadequate in domestic violence matters. It is therefore critical to acknowledge that wife beating is a According to him, the challenge to civil society is to move into crime. In some cases, the police officers have been involved physical and social territories that they have not ventured into, in negotiations with criminals especially in rural areas for documentation and maintenance of records on how the example in cases of defilement. This is often made in the electoral process is carried out. pretext of reconciling the two family members. Freedom of expression and the 2002 Kenyan elections She however asserted that the police face a number of Caleb Atemi, Journalist problems while undertaking their work: the police face lack of adequate resources to effectively undertake their operations, Mr Atemi said that it is important for a country in transition to there is no procedure to educate the general public on their ask itself why people die to express themselves. He explained rights and the duty of the police, and there is too much the different levels at which freedom of expression is denied bureaucracy. The training period of nine months is too short namely, at the individual level or at community level and that for the new recruits to handle the task effectively. any election should give the opportunity to bring about change.

Laws and regulations and extra-legal practices that inhibit He emphasised the need to respect the right of people to the police work in the administration of justice choose and access information since knowledge is a Mr Kathurima M'Noti, International Commission of Jurists prerequisite of choices. In many cases aspiring political candidates misuse the freedom of expression.

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5. Closing ceremony

On the last day, the international and regional human rights instruments were handed to each participant. The UN police and human rights training manual was also given.

The Rapporteur read out the recommendations by the NGOs. The police were invited to comment on them. They agreed in principle with the recommendations, which were formally adopted by the participants. 6. Press coverage

Given the sensitivities, FIDH-KHRC intentionally prevented the media from attending the closed sessions, panels and working groups, in case the police were to arrive. On Friday, the press was not allowed in the closing ceremony, in order to allow the police more ease in speaking with the NGOs. This worked out well.

However, there was press coverage on April 2 during the opening day by the Kenya Television Network and the Nation TV and on April 3, The East African Standard. People Daily carried an interview with Carla van Maris.

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IV. Recommendations adopted at the KHRC-FIDH Workshop on the Role of the Police in the Administration of Justice 2 - 6 April 2001 1. To the Police: Police Control and B. Long-term objectives Monitoring 1. A legislation should be adopted to appoint a special A. Short-term Objectives autonomous and independent body subject to and in conjunction with the national human rights commission. The 1. All physical violence by police and others should be made name suggested for the body was: the Police Complaints illegal and subject to prosecution. Amend the Police Act Authority (PCA). This authority should have power to investigate accordingly. police operations, inspect police records and summon police officers, non-attendance being punishable as contempt of court. 2. Each officer should only have one gun which is not to be produced in public or removed from its holster, except for 2. PCA should bring cases without interference from the authorized use, and not carried when off duty. There are Attorney- General. times when the police produce guns to scare people. 3. Citizens and NGOs should be able to make complaints to 3. Police should be properly remunerated to the level of the the PCA directly. armed forces. This is notably to avoid cases of bribery and extortion by the police force. 4. PCA should be able to protect complainants from intimidation. 4. All police officers, civilian police officers and police reservists should have nametags and badges as opposed to 5. Police officers subject to complaints should be suspended the current situation where police in civilian clothes do not from duty during investigations. have any form identification, making it impossible to control and monitor them. These should be displayed on the uniform. 6. The Police Commissioner is to have security of tenure as before independence. 5. Officers in civilian clothes should identify themselves at the time of an arrest. 7. Victims of police violence should be entitled to compensation from the government funds to avoid the 6. Police should live among community members not in police current situation where some people have won cases but camps. This is to enable them to interact freely with have not been compensated due to lack of funds. community members to foster good relations. The police seem alienated from the society; this interaction will ensure 8. The training module and syllabus for police officers should mutual understanding. be reviewed to reflect the current changing situation in terms of current technology and recruitment procedures 7. Education is needed for police and public on civil rights and liberties, including rights of arrested persons. 9. The police should be posted back to their home districts for better communication and control, and to avoid propensity to 8. Currently there are vigilante groups who have acted beyond torture their powers. All of them should be subject to the police with a clear framework on their mode of operation 10. Consider whether the national police force should be broken down into many different regional forces like in the US, 9. The framework for admission to the police force and Netherlands and Canada promotion should be revised to be transparent and should be based on merit, not on nepotism. 2. Community Policing

10. The police force should be selected from all sectors of 1. It has become desirable to introduce community policing society and not through ethnicity, nepotism or any kind of which is a joint effort between the police and the community political bias. for the common good - ideally a 50:50 effort.

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2. To succeed, the communities and the police must redefine 3. The members should select a chairperson the relationship between themselves. Society must, while demanding accountability from the police, also be willing to 4. There should be a fixed election timetable be accountable to the police. 5. Electoral commission should have limited powers over the 3. The community must be ready to reconsider the police in public order matters before, during and after disadvantageous position under which the police operate and elections the lack of respect for their rights, for example: Poor housing 6. KHRC should bring test cases to enforce voter registration, Poor pay where this is refused Lack of security Risk element: there should be insurance and proper system 7. KHRC should bring test cases against agents provocateurs for speedy and adequate compensation for death or injury in service. 8. KHRC should introduce training for police in public order for Equality of opportunity for female officers, including proper election campaign facilities and affirmative action to promote women Stress on the job without appropriate management or 9. All parties which nominate candidates should have access counselling to the state owned TV and radio

4. It is evident that both the police and the community must 10. After the elections, special courts should deal speedily undergo a rigorous education campaign to change the with election disputes with no deposit required present attitude that designates the two groups as distinct "us" and "them" entities incapable of interacting with each 11. Public information campaign on election procedures other. should be launched Set up a few pilot projects in community policing Set up intensive training for the police in community policing 4. To the Prisons Department The bureaucracy and hierarchical system of the police should be reviewed 1. The warders' poor remuneration, working equipment and Intensive study of the myriad communities and their specific other terms and conditions is a problem. Their terms of needs before community policing is done nationally service including their remuneration should be at par with Set certain improved standards for entry into the police those of members of the armed forces Networking among those who have set up pilot projects to learn from each other and correlate the results and resolve 2. NGOs should be allowed to provide some necessities and pertinent issues and experiences. other requirements in the prisons

5. Once the pilot projects are up and running, community 3. The presidential prerogative of mercy could also be invoked policing can be established for the common good of society, to release the terminally ill paying equal respect to the rich and poor, and to participate in the building of an egalitarian society. The police must 4. Congestion in the prisons: effectively implement the redefine the relationship between them and the society must Community Service Act for all offences punishable with up to also be accountable to the police for this effort. three years imprisonment as stipulated in the Act. There should also be lobbying for all charges to be eligible for bail, 3. To the Electoral Commission thus decongesting the prisons

1. Each party should nominate one or two representatives to 5. Impediments of visitation rights by doctors, immediate the electoral commission family members and advocates must be overcome, particularly by getting rid of red tape and designating private 2. Parliament should vet nominees and select the 15-20 rooms for the visitors to see the inmates members of the commission 6. Dehumanizing conditions like chaining sick prisoners to

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hospital beds must be abolished and full time warders should means of civic education meetings guard the prisoners in hospitals (unless the sick are a risk to the security and lives of the doctors and public) 4. Defamation of character and political reputation of some individuals prevents a level playing field for parliamentary and 7. Inadequate training of warders: training of prison warders is other election candidates. Therefore, there is a need to enforce needed on issues pertaining to human rights so that they the laws that are in place and enable victims to sue for libel in appreciate that prisoners have rights even though they are cases where the media defames a candidate for her/him to incarcerated recover damages and seek injunctive orders to stop them from any similar acts. 8. Transport facility for moving from prisons to courts to attend hearings of their cases: adequate budgetary allocation 5. Cease the ethnicisation of politics and formation of ethnic to the prison department is essential to ensure that prisoners political groupings which limits freedom of expression, as citizens attend court sessions promptly are not free to move and assemble in some parts of the country.

9. Prisoners should have a right to vote at elections 6. Cease police interference and disruption of lawfully organized opposition rallies and sensitise the police to accept 5. On challenges ahead, freedom of the opposition parties as legitimate and apply the law without expression and 2002 elections in Kenya fear or favour.

1. The recent appointments to the judiciary have not been on 7. Fully implement the Inter-Party Parliamentary Group merit; most of those appointed to senior positions have had a reforms which provides that the state owned Kenya record of giving politically motivated judgments. Therefore: Broadcasting Corporation will give equal and fair coverage to There should be an amendment to the model Constitution to all political parties. At present, there is imbalance of have judicial appointments approved by Parliament information in state owned media as the Kenya Broadcasting Law Society of Kenya should be part of the Judicial Service Corporation favours the ruling party. Commission where lawyers can vet each other There should be a reform to provide for Parliament and the 8. The Electoral Commission is not independent since it is Judicial Service Commission jointly to call for resignations of appointed by the executive arm of the government who is also any judge whose performance is unsatisfactory interest in the outcome of the elections. Therefore: There should be absolute independence of the Commission 2. The Bill pending to increase registration bond requirement and its de-linking from the government. The members of the of print media form current Ksh. 10,000 to Ksh. 1,000,000 Electoral Commission should be appointed with a 2/3 should be rejected. Therefore: majority approval by Parliament and should represent all NGOs to initiate a newspaper run by civil society as a viable sectors of the society investment The Electoral Commission should be able to control the police NGOs to invest in electronic media broadcast in local languages effectively to protect the electoral commissioners during the election process 3. Private militias and lack of security produce informal repression: people will be afraid to come forward to give views 9. Due to the likelihood of pre-election violence as in past to the constitutional review Commission for fear of being elections, strategies are needed to pre-empt the violence attacked by these militias. Therefore: itself, rather than documenting it afterwards. Citizens need to be able to exercise their right of arrest of such militia members and they can exercise their legal right to 10. Clear legal provisions on transition after elections should be self defence against such militias provided. Therefore, there is need for a provision where there is Provide an alternative source of income for potential recruits a period of one month or so to allow those who wish to to such militias challenge the outcome to put their cases forward and be Get rid of sponsors of private armies by prosecuting them and determined similar in other countries (e.g. the system in the getting them barred from contesting further elections USA or in Bangladesh). In the meantime there should be an Campaigning against them and particularly the sponsors at interim president, who shall hand over power to the legally political level so that they do not get to Parliament, and by elected president.

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V. Follow-up Mission of FIDH-KHRC: 13-15 November 2002, Nairobi 1. Introduction undermining the years of efforts behind the constitution- making process and further decline the human rights The purpose of the last phase of the Legal Cooperation compliance and continued police violence, or Programme in Kenya was to monitor the progress of the recommendations adopted at the workshop on police b) The opposition NARC comes to power, which will give the brutality in April 2001. In order to do so, the mission was new Constitution a better chance and some hope for meant to meet the relevant authorities and NGOs. Kenya was immediate legal reform. Either way, the follow-up delegation in full pre-election period, the Presidential elections were to in a possible second follow-up mission will be able to meet the take place on 27th December 2002. new authorities (a new Attorney General, a new Police Commissioner etc. are envisaged either way); it would help to The purpose of the workshop was to bring together human keep the momentum of checking police abuses (which are rights NGOs and government authorities to exchange ideas on still rampant according to KHRC reports), and it would the way forward in the area of administration of justice and encourage the process of change towards minimizing such the police, and thereafter to ensure that the violations. Recommendations adopted together have been thoroughly followed up. In the draft Constitution, the Police is a constitutional body, not under a statute as enacted by Parliament (as is the case The delegation was composed of Dr. Sengundo Mvungi, Dean today). of the Faculty of Law of the Dar es Salaam University and Board member of the Legal and Human Rights Center (LHRC), 3. Meeting with authorities also a member of FIDH ; Simia Ahmadi (FIDH Chargée de Mission for East Africa); and Dr. Willy Mutunga, Executive The FIDH wrote to the authorities to seek meetings for 14-15 Director of the KHRC. November, realizing fully that this was the pre-election period, as Presidential elections are to take place on 27th December 2. Context of the mission 2002. FIDH and KHRC thought this was the key opportunity to remind the authorities of preventing election human rights i. Pre-Election Political Climate during the mission The pre- abuses. The delegation assessed that it might still be possible election activities and climate were obstacles for meeting to see some key relevant authorities, being that it is one and authorities. The original intention was in fact to use this a half months before elections and district campaigning was opportunity to remind the government to prevent human only just beginning. rights abuses during elections. However, the delegation was able to determine some little progress with regard to the KHRC made every effort prior to the follow-up mission to recommendations, namely the conducting of police training obtain meetings with the following authorities: since the workshop of April 2001, and some legislative reform (e.g. child law, police ordinance in favour of human rights and - The Police Commissioner, Mr. Philemon Abongo other human rights provisions reflected in the new draft - The Police Spokesperson, Mr. Peter Kimanthi Constitution). See below for more details. - The Attorney-General, Mr. Amos Wako - The Chief Justice, Mr. Bernard Chunga ii. The draft Constitution When reading the progress on some - The Head of Civil Service, Dr Sally Kosgei of the recommendations below, it is important to bear in mind - The Minister of State for Internal Security, Mr. Sunkuli that many of these have been taken into consideration in the draft Constitution. There are two possible scenarios for the The delegation met with the Deputy Spokesperson of the implementation of the recommendations in light of the draft Police, Mr. Kingori (previously in charge of the crime branch). Constitution's possibility of coming into existence: Some of his comments are reflected in the progress on recommendations, in particular related to the new police and a) the ruling party KANU stays in power, which will weaken the human rights manual and training (section 4 below). Specific possibility of the draft Constitution to coming into effect, thus to the upcoming elections, he reassured the delegation that

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police were trained in crowd control methods, that they would I. To the Police: Police Control and Monitoring not use live ammunition, but only tear gas and water canons. He also said that tactical training with regard to election had A. Short Term Objectives been conducted by their department since July 2002 in large police consignments where the main message was: "train Recommendation 1. All physical violence by police and hard, fight easy". Mr. Kingori also said that they are predicting others should be made illegal and subject to prosecution. violence by provinces, and added that human rights violations Amend the Police Act accordingly. might take place by untrained police or because of lack of Little progress: the Police Act was not amended accordingly, 'facilities'. however, NGOs have been sending letters to police stations and police have taken some administrative action in that The meeting with the Attorney-General, Mr. Amos Wako, was direction. secured, but when the delegation reached his office, an emergency prevented him from seeing the delegation; he sent Recommendation 5. Officers in civilian clothes should his apologies to the delegation the following day. The identify themselves at the time of an arrest. delegation met instead with the Principal State Counsel Ms. There is some apparent small improvement, according to Njeri Mwangi who was unaware of the April 2001 workshop cases receiving attention at KHRC. and who was unfortunately not able to update us on the progress on the implementation of the recommendations, Recommendation 6. Police should live among community though she displayed good intentions to follow-up on the members not in police camps. This is to enable them to delegation's many queries. She did bring up that some police interact freely with community members to foster good had been prosecuted for extra-judicial killings. Also she said relations. The police seem alienated from the society; this that the A-G's office was working on the report for the UN interaction will ensure mutual understanding. Human Rights Committee of the ICCPR. As far as pending This is happening only in some places, but it is not common. legislation, she said that the Domestic Violence Bill was in its second reading. Other legislation pending is the Equality Bill Recommendation 7. Education is needed for police and tabled before Parliament. The Criminal Amendment Bill public on civil rights and liberties, including rights of arrested touches on the police, and this will include (if it passes) persons. acceptance of confessions in Court. Much has been done about this: KHRC, Kenya-HURINET and other human rights groups have been conducting human The Chief Justice Mr. Bernard Chunga was unable to meet due rights training of the police. According to the Monitoring to the funeral on 15th November of Justice William Tuiyot. Officer at KHRC, one can conclude that this has contributed Unfortunate for the delegation is that the Police in some cases to lowering violence, such as in Thika, during a Commissioner, the Police Spokesperson, and other senior National Assembly of Rainbow Coalition (NARC) rally. policemen were meeting at the President State House for a two-day meeting on security during elections. As the deputy spokesperson of the Police reported: there is a curriculum in General Service Unit (GSU) and CID Criminal 4. Monitoring the Recommendations Investigation Division (CID) on children's rights and child adopted at the KHRC-FIDH Workshop on protection for police officers. There is also for the first time a the Role of the Police in the police human rights manual entitled: "Kenya Police - Administration of Justice 2-6 April 20012 cooperation between police and community: a human rights training manual" prepared by KHRC, FIDA (International As a means of verification, the delegation resorted to the Federation of Women's Association), International Commission KHRC to report on the progress and non-progress of the many of Jurists - Kenya section, the Standing Committee on Human recommendations of April 2001. The KHRC is the main source Rights, and the Independent Medico Legal Unit. This is a of information for the monitoring of the recommendations as significant step towards awareness of the police on respect of it is in a good position to do so, having followed these issues human rights. The delegation was informed that the manual since April 2001, and as many of these recommendations was launched in May 2002, however it is difficult to know how concerned issues related to the new Constitution-making much the manual has been used to date. Furthermore, within process. the 'Constitutional Reform', civil rights and liberties and human rights were taught in schools and through the media.

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B. Long-term objectives them and the society must also be accountable to the police for this effort to function. Recommendation 1. There should be legislation to appoint a Plans are under way (no further details were given at this special autonomous and independent body subject to and in point). conjunction with the national human rights commission. It is suggested the name of the body by the Police Complaints III. To the Electoral Commission Authority (PCA). This authority should have power to investigate police operations, inspect police records and Recommendation 2. Parliament to vet nominees and select summon police officers, non-attendance being punishable as the 15-20 members of the commission contempt of court. This is foreseen in the Draft Constitution. The Attorney-General apparently took this up with the Police Commissioner, but to date no development is known. Recommendation 3. The members to select a chairperson This is foreseen in the Draft Constitution. Recommendation 6. The Police Commissioner is to have security of tenure as before independence. Recommendation 8. KHRC to introduce training for police in In the Draft Constitution, there is mention instead of the public order for election campaign Inspector-General having to have security of tenure. The Several workshops were conducted by other NGOs. suggestion did go from the Police to the Cabinet. Recommendation 9. All parties which nominate candidates Recommendation 7. Victims of police violence should be to have access to the state owned TV and radio entitled to compensation from the government funds to avoid This is foreseen in the Draft Constitution. the current situation where some people have won cases but have not been compensated due to lack of funds. Recommendation 11. Public information campaign on Some cases are known, such as compensation to a election procedures presidential guard who was tortured, as well as a politician who This is ongoing, with well-done spots on TV/radio/posters by was beaten. Non-state victims have yet to receive civil society compensation for human rights violations (according to KHRC). IV. To the Prisons Department Recommendation 10. Consider whether the national police force should be broken down into many different regional In the Draft Constitution a new body on Prisons is envisaged. forces like in the US, Netherlands and Canada This is not envisaged in the Draft Constitution. Recommendation 2. NGOs should be allowed to provide some necessities and other requirements in the prisons. The II. Community Policing presidential prerogative of mercy could also be invoked to release the terminally ill. Recommendation 4. It is evident that both the police and the This has opened up, according to KHRC, and the new Prisons community must undergo a rigorous education campaign to Commissioner is more cooperative. change the present attitude that designates the two groups as distinct "us" and "them" entities incapable of interacting Recommendation 4. Congestion in the prisons: effectively with each other. implement the Community Service Act for all offences punishable with up to three years imprisonment as stipulated - Set up a few pilot projects in community policing in the Act. There should also be lobbying for all charges to be KHRC is involved in two projects in slum areas which relate to eligible for bail, thus decongesting the prisons. community policing. Of 40'000 prisoners, 11'000 are serving under this Act, though this for con-custodial sentences (according to KHRC), Recommendation 5. Once the pilot projects are up and and there are some improvements on decongestion, though running, community policing can be established for the this remains a serious problem. common good of society, paying equal respect to the rich and Recommendation 7. Inadequate training of warders: training poor, and to participate in the building of an egalitarian of prison warders is needed on issues pertaining to human society. The police must redefine the relationship between rights so that they appreciate that prisoners have rights even

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though they are incarcerated. Thanks to the political environment, this is the first time KHRC conducted a training workshop for prison wards with (according to the Monitor of KHRC) that there is a 'unified' Eldoret Prison in April 2002. opposition, and even the ruling party limits itself on playing the ethnic card, though it can of course be exploited at times. Recommendation 9. Prisoners should have a right to vote at elections. Recommendation 6. Cease police interference and This is addressed in the Draft Constitution. disruption of lawfully organized opposition rallies and sensitise the police to accept the opposition parties as V. On challenges ahead, freedom of expression legitimate and apply the law without fear or favour. and 2002 elections in Kenya The security of tenure is an issue here. One progress: in 2001, 80 rallies were broken up or disrupted, as opposed to only 28 Recommendation 1. The recent appointments to the recorded from January to September 2002 (source: KHRC) judiciary have not been on merit; most of those appointed to Recommendation 8. The Electoral Commission is not senior positions have had a record of giving politically independent since it is appointed by the executive arm of the motivated judgments. Therefore: government who are also interested parties in the outcome of the elections. - There should be an amendment to the model Constitution to Most of these recommendations are addressed in the Draft have judicial appointments approved by Parliament Constitution. Conducting political meetings can be done with This is addressed in the Draft Constitution. simple notification to the police, but police keep on operating as if a license is needed, though they know better. - Law Society of Kenya should be part of the Judicial Service Commission where lawyers can vet each other Therefore: This is addressed in the Draft Constitution. - There should be absolute independence of the Commission and its de-linking from the government. The members of the - There should be a reform to provide for Parliament and the Electoral Commission should be appointed with a 2/3 Judicial Service Commission jointly to call for resignations of majority approval by Parliament and should represent all any judge whose performance is unsatisfactory sectors of the society This is addressed in the Draft Constitution where there is - The Electoral Commission should be able to control the mention of removal of judges. police effectively to protect the electoral commissioners during the election process Recommendation 2. The Bill pending to increase registration Unfortunately parties allow potential for rigging bond requirement of print media form current Ksh. 10,000 to Ksh. 1,000,000 should be rejected. Recommendation 9. Due to the likelihood of pre-election This has apparently happened. violence as in past elections, strategies are needed to pre-empt the violence itself, rather than documenting it afterwards. Recommendation 4. Defamation of character and political Early-warning signals are documented. Six NGOs (funded by reputation of some individuals prevents a level playing field USAID) provided information. Furthermore, KHRC conducted for parliamentary and other election candidates. Therefore, a workshop in August 2001 for the media on the role of the there is a need to enforce the laws that are in place and media in pre-empting human rights abuses. enable victims to sue for libel in cases where the media defames a candidate for her/him to recover damages and Recommendation 10. Clear legal provisions on transition seek injunctive orders to stop them from any similar acts. after elections should be provided. Therefore, there is need Defamation is ongoing. However many libel cases exist, but for a provision where there is a period of one month or so to there are such strict interpretations of libel that it leads to allow those who wish to challenge the outcome to put their self-censorship and to abuse. cases forward and be determined similar to other countries (e.g. the American and Bangladesh systems). In the Recommendation 5. Cease the ethnicisation of politics and meantime there should be an interim president, who shall formation of ethnic political groupings which limits freedom of hand over power to the legally elected president. expression, as citizens are not free to move and assemble in Unfortunately this is not made clear, though there is an some parts of the country. ongoing debate, according to KHRC.

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5. Conclusion

The FIDH believes that the above indicates some progress: five years ago an improved relation between KHRC and the government was, according to the KHRC Executive Director, 'unimaginable'. However, he stated with regard to legislation: "Parliament left a lot of work undone, except for the Children's Act."

The Research and Monitoring Officer at KHRC, Mr. Mikewa Ogada, said that the Democratic Development Group (composed of donors such as the EU, USA and Canada) has helped to keep the pressure on the government to respect free and fair elections and freedom of association. "The Group has been vocal by making some strong statements", he said.

Finally, he told the delegation that KHRC will be monitoring pre-election and election violence.

The FIDH and KHRC believe that the one success of the programme thus far lies in the fact that, despite great difficulty, the police finally did attend the workshop and full advantage was taken by both sides to get acquainted and to sort out issues of misunderstanding. The momentum was used thereafter to follow-up pertinent recommendations which are reflected in the draft constitution.

2. The report on the recommendations' progress herewith below reflect the situation as of mid-November 2003. Further update is provided under section VI. 2003: Way forward for police reform in Kenya - a new dawn?

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VI. 2003: Way forward for police reform in Kenya - a new dawn?

1. The new political dawn - Powerful interests inside and outside the police force, through extralegal interference with police operations Since the April FIDH-KHRC 2001 seminar, the political - In public opinion, a majority of Kenyans repeatedly indicate landscape has changed in ways that have allowed for that, at best, they lack confidence in the impartiality and significantly improved engagement. The December 2002 effectiveness of the police, and that, at worst, they fear the elections were won by Mwai Kibaki - Moi's most prominent police. In a society with one of the highest crime rates in the opposition politician. Human rights groups in Kenya have world, the average Kenyan citizen believes that half of the referred to this as a welcome change from absolute and members of the police force are corrupt and that over one- benevolent dictatorship. The new government has indicated third of all crime committed in the country is attributable to its political will to support reforms. In the earlier days of the police criminality or compliance. new regime, the police reduced their swoops, but the trend went back to the earlier practice.3 3. Initiatives of the civil society: Analysis at the KHRC-CHRI Conference, 24 -25th 2. Reforms on the police issue April, 2003

The recommendations drawn from the 2001 seminar The KHRC and the Commonwealth Human Rights Initiative currently form a core part of the reforms that are being (CHRI) had earlier this year in April, organized a conference to considered along with others that have come more recently. front for comprehensive police reforms. The current reform is Owing to the changes initiated by the new government, the an opportunity to advocate for police reforms that will ensure Kenya Police is embarking on a reform process. the centrality of human rights and the rule of law in the day- to-day functioning and culture of the police force. For this to The Kenya Governments reform agenda seems to be pegged be achieved, any reforms must be aimed at enhancing the on what has broadly been referred to as police modernization accountability of police functioning to the law, and to and motivation. This is characterised by improving the Kenyans. equipment and working infrastructure of the police. At the meeting, the most urgent area of reform identified is During his budget speech on 12 June 2003, Finance Minister how to deal with the culture and work ethic within the police Mr. David Mwiraria gave the police force an extra Sh300 force currently. The police have been at the nexus of the most million to "enhance the enforcement of law and order". serious problems facing Kenyan society: rampant government corruption, unacceptably high levels of crime, interethnic In Mr. Mwiraria's own words, "The Government recognizes the violence, and vigilantism. Crime and violence which have critical role played by effective maintenance of law and order resulted partly from this culture and practice of the police in the socio-economic and political life of the country. Without have eroded social capital, through reduced trust and co- security, there can be no economic growth or poverty operation within formal and informal organizations. This has reduction." The money was for the implementation of also weakened the social compact between the government medium-term programmes on operations, maintenance, and the citizens on crime prevention approaches. Improving housing and equipment modernization. public perception about police integrity is fundamental in improving policing efficiency and effectiveness. Another considerable development is that since then the government has also raised police salaries, effective in July, Amongst other issues, the following are the priority questions: by 100% for the lowest paid. - Assessing the capacity of the police for change - is the police really capable of changing from a regime force to a However, whilst these reforms are important, they are not the democratic service? most urgent, as they do not respond to the following realities: - What is the police doing about working closely with private - Corruption in the police force security firms - who has the command and control and how - Brutal policing practice, often referred to as "trigger happy are they collaborating? policing" - How is the police working at reaching out to the community

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at large in ways that re-builds their confidence in the police a) Make it clear that the government is responsible for force? And ensuring that the police service is one that acts according to - Most important what strategic framework are the proposed law reforms going to be undertaken? b) Ensure that the head of police enjoys security of tenure, At present, the following seems to be the main issues affecting which should have no relation to the political calendar the quality of policing in Kenya; - Lack of adequate resources; c) Ensure that the head of police is appointed and removed - Political interference in the operations of the police - to the using a clearly-defined process ensuring that merit is key extent that the police is perceived as operating to achieve political ends, rather than enforcing the rule of law. The d) Guarantee citizens the right to information practice of policing is more inclined towards serving the interest of the status quo; e) Set up constitutional bodies to monitor the performance of - Increased police misconduct, including allegations of the police - the National Human Rights Commission and the criminality within the police force; Police Service Commission. - Extremely poor relationship between the community and the police; f) Ensure that the commissioners to these bodies are - Lack of visionary police leadership; appointed and removed from office using a clearly defined, - Lack of independent mechanisms to monitor police transparent and accountable process, which warrants merit performance; as the key to appointments - Lack of effective mechanisms to provide redress to the public for complaints against the police - external mechanisms are B) Legislative Reforms inadequate and internal mechanisms weak; - General government culture of secrecy that does not The legal framework under which the police operate grants encourage public scrutiny of government or police functioning. them wide discretionary powers, without providing adequate - Lack of an overall national strategic plan against which to carry regulatory and accountable mechanisms. The law needs to be out comprehensive reform in the police force overhauled, with new provisions put in place to limit police discretion and provide for institutions and mechanisms that Police reform cannot be accomplished in a piecemeal adequately monitor police performance and check police fashion. Rather, institutional arrangements and management excesses. The main body to deal with this should be the systems designed to ensure police accountability and Ministry of Justice and Constitutional Affairs, the Attorney adherence to the rule of law must be put in place before other, General's Chambers and the Law Reform Commission. more targeted reforms can take hold. Programs to enhance specific police operational capacities, to provide for C) Institutional Reform engagement between the police and the community, to train police personnel on principles of human rights, and to The third level of reforms is internal, and the development of increase the pay of the consultancy shall continue being the reform policy with short, medium and long-term goals. The focal areas in the forthcoming operational year. police force is moving towards becoming a police service. As a matter of priority, the police must identify a long-term goal 4. Proposed suggestions for police and how they intend to achieve it. The Kenya police ought to reform in Kenya be reorganised to meet these new objectives. The police must move towards results-oriented management, where any Police reform in Kenya must take on a multifaceted approach activities carried out by the force are measurable against set with various levels targeted for reform objectives.

A) Reforms under the Constitution a) The Police Standing Orders must be reviewed to conform to the spirit of the Constitution; The environment through which sustainable police reform can be achieved should be established under the Constitution. As b) Internal accountability mechanisms must be identified, such, provisions must be adopted in the new Constitution which; their effectiveness evaluated and the institutions

FIDH / P A G E 25 Kenya Role of the Police in the Administration of Justice

strengthened. These include, in particular, the internal complaints mechanism and the disciplinary system c) Reorganisation of ranks of the force. In each division and directorate, questions should be asked regarding its purpose, relevance in view of new objectives etc, and whether there is need for other new divisions/directorates. The various departments need to rationalise their functioning and reasons, and have good police policy which is clearly documented and easily accessible, such that one should be able to hold them to account on their own policies. For instance, is there a need for an inspectorate division; are there officers whose main role is to investigate complaints against the police, or a division whose main role is to monitor and evaluate performance of the police internally? What is the function of the research and planning department? This is a key department. Who does it fall under, and why? d) Community policing seems to be in vogue with some portions of the Kenya Police. However, in order for community policing to succeed, a change of approach to policing is required. The culture and attitude of the police must change. e) The administration police should be done away with - The Uganda government has made its administration police a separate directorate within the police force. The possibility and opportunity to borrow from the Uganda experience should be explored.

3. Below is an update based on the conference of the KHRC and the Commonwealth Human Rights Initiative (CHRI) of April 2003.

FIDH / P A G E 26

FIDH represents 116 Human Rights organisations

72 affiliate members and 44 correspondent members MEXIQUE (LIMEDDH) AFRIQUE DU SUD (HRC) The International Federation for ALGERIE (LADDH) ALBANIE (AHRG) ALLEMAGNE (ILMR) MOZAMBIQUE (LMDDH) Human Rights (FIDH) is an NICARAGUA (CENIDH) ALGERIE (LADH) ARGENTINE (LADH) ARGENTINE (CAJ) international non-governmental AUTRICHE (OLFM) NIGER (ANDDH) NIGERIA (CLO) ARGENTINE (CELS) BAHREIN (CDHRB) ARMENIE (ACHR) organisation dedicated to the world- BELGIQUE (LDH et LVM) PAKISTAN (HRCP) PALESTINE (PCHR) BOUTHAN (PFHRB) BENIN (LDDH) BULGARIE (LBOP) wide defence of human rights as BOLIVIE (APDHB) PALESTINE (LAW) PANAMA (CCS) BRESIL (JC) BRESIL (MNDH) CAMBODGE (LICADHO) defined by the Universal Declaration BURKINA FASO (MBDHP) PAYS BAS (LVRM) PEROU (CEDAL) COLOMBIE (CPDDH) of Human Rights of 1948. Founded BURUNDI (ITEKA) COLOMBIE (ILSA) CAMBODGE (ADHOC) PEROU (APRODEH) PHILIPPINES (PAHRA) CUBA (CCDHRN) in 1922, the FIDH has 116 national CAMEROUN (LCDH) ECOSSE (SHRC) CANADA (LDL) PORTUGAL (CIVITAS) affiliates in all regions. To date, the RDC (ASADHO) ESPAGNE (APDH) CENTRAFRIQUE (LCDH) ETATS UNIS (CCR) FIDH has undertaken more than a CHILI (CODEPU) ROUMANIE (LADO) ROYAUME-UNI (LIBERTY) ETHIOPIE (EHRCO) CHINE (HRIC) IRLANDE DU NORD (CAJ) thousand international fact-finding, COLOMBIE (CCA) RWANDA (CLADHO) SOUDAN (SHRO) ISRAEL (B'TSELEM) CONGO BRAZZAVILLE (OCDH) JORDANIE (JSHR) judicial, mediation or training COTE D'IVOIRE (LIDO) SENEGAL (ONDH) SERBIE ET MONTENEGRO KIRGHIZISTAN (KCHR) CROATIE (CCDH) LAOS (MLDH) missions in over one hundred EGYPTE (EOHR) (CHR) SUISSE (LSDH) LETTONIE (LHRC) countries. EL SALVADOR (CDHES) LIBAN (ALDHOM) EQUATEUR (INREDH) SYRIE (CDF) TCHAD (LTDH) LIBAN (FHHRL) ESPAGNE (LEDH) LIBERIA (LWHR) FINLANDE (FLHR) TOGO (LTDH) TUNISIE (LTDH) LYBIE (LLHR) FRANCE (LDH) LITHUANIE (LHRA) GRECE (LHDH) TURQUIE (IHD/A) VIETNAM (CVDDH) MOLDOVIE (LADOM) GUATEMALA (CDHG) RDC (LE) GUINEE (OGDH) RDCONGO (LOTUS) GUINEE BISSAU (LGDH) REPUBLIQUE DE DJIBOUTI (LDDH) IRAN (LDDHI) RUSSIE (CW) IRLANDE (ICCL) RUSSIE (MCHR) ISRAEL (ACRI) RWANDA (LIPRODHOR) ITALIE (LIDH) RWANDA (ADL) KENYA (KHRC) SENEGAL (RADDHO) KOSOVO (CDDHL) TANZANIE (LHRC) MALI (AMDH) TCHAD (ATPDH) MALTE (MAHR) TUNISIE (CNLT) MAROC (OMDH) TURQUIE (HRFT) MAROC (AMDH) TURQUIE (IHD/D) MAURITANIE (AMDH) YEMEN (YODHRF) MEXIQUE (CMDPDH) ZIMBABWE (ZIMRIGHTS)

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La Lettre Director of the publication: Sidiki Kaba is published by Fédération Internationale des Ligues des Droits de Editor: Antoine Bernard l’Homme (FIDH), founded by Pierre Dupuy. Assistant of publication: Céline Ballereau-Tetu It is sent to subscribers, to member organisations of the FIDH, to Original : English, ISSN en cours. Printing by the FIDH. international organisations, to State represenatives and the media. Dépot légal November 2003 - Commission paritaire THis report was realised in the framework of a programme N°0904P11341 financially supported by the European Commission Fichier informatique conforme à la loi du 6 janvier 1978 (Déclaration N° 330 675) 17, passage de la Main d’Or - 75011 - Paris - France CCP Paris : 76 76 Z Tel : (33-1) 43 55 25 18 / Fax : (33-1) 43 55 18 80 E-mail: [email protected]/ Internet site: http://www.fidh.org

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