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CHAPTER 12
ADMINISTERING AND REGULATING SECURITY AND CRIMINAL JUSTICE
IN KENYA AND AFRICA

This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Administering and regulating

security and criminal justice in Kenya and Africa,” in Ben Sihanya (2020) Constitutional

Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 2: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative

Justice in Kenya Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya

12.1 Conceptualising Security and the Criminal Justice System in Kenya and Africa

My overarching argument is that national or public security has a narrow and a broad meaning and significance which are equally important in the quest for constitutional democracy in Kenya and Africa.1 In this chapter, security and criminal justice is prolematised and conceptualized using the Afro-Kenyanist methodology and approach, with elaborate anecdotes and references to Kenyan and African scholarship. What are some of the key issues in the constitutional, legislative, policy and administrative debate in the context of the Building Bridges Initiative (BBI)….

How has security and the criminal justice system (CJS) been conceptualized, problematized, and contextualized in Kenya and Africa? Significantly, in Kenya and some African states, security is a human right. It is also a core function and obligation of the Executive and the President and/or Prime Minister. Art 238(1) of the Constitution defines national security thus:

“National security is the protection against internal and external threats to Kenya’s territorial

integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and

prosperity, and other national interests.”2

And Article 29 guarantees security as a human right. Article 29 states:

“Every person has the right to freedom and security of the person, which includes the right not to be— (a) deprived of freedom arbitrarily or without just cause; (b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58; (c) subjected to any form of violence from either public or private sources; (d) subjected to torture in any manner, whether physical or psychological; (e) subjected to corporal punishment; or (f) treated or punished in a cruel, inhuman or degrading manner.”3

1

Ben Sihanya (2012) “Security and the administration of presidential elections in Kenya: citizens’ rights, the quest

for constitutional government,” Advocate, Magazine of the Law Society of Kenya, August 2012, 4-7; 41. Ben

Sihanya (2013) “Administering security and integrity in Kenya’s presidential election 2013,” The Advocate,

Magazine of the Law Society of Kenya (2013). 2 Cf. related terms: security, national security, public security, peace....

1

Compare and contrast the definition of security under the repealed Preservation of Public Securities Act (PPSA), Cap 57. The definition under this repealed Act is seven-pronged and reads as follows:

“The preservation of public security includes (a) the defence of the territory and people of Kenya; (b) the securing of fundamental rights and freedoms of the individual; (c) the securing of the safety of persons and property; (d) the prevention and suppression of rebellion, mutiny, violence, intimidation, disorder and crime, and unlawful attempts and conspiracies to overthrow the government or the constitution; (e) the maintenance of the administration of justice; (f) the provision of a sufficiency of the supplies and services essential to the life and well-being of the community their equitable distribution, and availability at fair prices; and (g) the provision of administrative and preventive measures during periods of actual or apprehensible national danger or calamity or in consequence of any disaster or destruction arising from natural sources.”4

Remarkably, the constitutional text and intendment or spirit seems to redefine security as a human right and to reverse coercion, brutality and corruption56 previously associated with security and administrative powers.7

During the enforcement of the curfew imposed to control the spread of coronavirus (COVID-19), there were reports of police brutality in most parts of Kenya, especially in Mombasa, Kwale among other regions in Kenya.8 For instance, the Washington Post reported one Kenyan citizen stating,

“I didn’t even get close to the front queue by 7 O’clock, and that’s when the police came in with their sticks and whips and started chasing us and beating us.”9

3 To cite a variety of sources.

4

Cf H.W.O. Okoth Ogendo (1991) “Constitutions without constitutionalism: Reflections on an African Political

Paradox,” in Issa G. Shivji (eds) (1991) State and Constitutionalism: African Debate on Democracy, South African

Political Economy Series (SAPES) Trust, Harare, Zimbabwe, 17-18. The Personal Property Security Act (PPSA) was repealed in 1997 under the Inter Parties Parliamentary Group (IPPG). See Ben Sihanya Revised Teaching Notes on Constitutional Law and Comparative Constitutional Law by Ben Sihanya 2004-2020, Innovative Lawyering & Sihanya Mentoring. 5 United Nations Committee against Torture report, Concluding Observations on Kenya (2008)….

6

Amnesty International (2013) Police Reform in Kenya: “A Drop in the Ocean,” Amnesty International

Publications, United Kingdom.

7

Daily Nation (2020) “Uproar over police brutality during virus curfew in Kenya,” Nairobi, 28/3/2020, at

https://www.nation.co.ke/counties/Uproar-greets-Kenya-coronavirus-curfew/1107872-5507340-12qc9qy/index.html

(accessed April 3, 2020); Otsieno Namwaya (2020) “Kenya Police abuses could undermine Coronavirus fight,”

Human Rights Watch, Africa, 31/3/2020 at https://www.hrw.org/news/2020/03/31/kenya-police-abuses-could- undermine-coronavirus-fight (accessed April 3, 2020).

8 Fadhili Fredrick (2020) “Kwale man “assaulted” by police enforcing curfew dies,” Daily Nation, Nairobi, April 3,

  • 2020,
  • at

https://www.nation.co.ke/counties/kwale/Kwale-man-dies-after-being-assaulted-by-police--curfew--
/3444918-5512794-hlexcmz/index.html (accessed 9/4/2020).

9

Max Bearak & Rael Ombuor (2020) “Kenya’s coronavirus curfew begins with wave of police crackdowns,”

Washington Post, Africa, 28/3/2020, at https://www.washingtonpost.com/world/africa/kenyas-coronavirus-curfew-

2

How is security conceptualized, problematized, and contextualized in the post 2010 Kenya and Africa?

12.2 Typology of security in Kenya and Africa

As indicated in the repealed Preservation of Public Security Act (PPSA), security has a narrow and a broad meaning, as well as a compromised one between the two extremes. The following typology captures this perspective on security.
First, security of the person (life and limb). Second, security of the work place. Third, security of property. Fourth, security of the home. And fifth, security in society generally.
What principles undergird security and criminal justice system in Kenya and Africa?

12.3 Principles of National Security in Kenya and Africa

Article 238(2) of the Constitution lays down the principles of national security. These include the following four.

First, national security is subject to the authority of this Constitution and the Legislative assemblies: National Assembly, Senate and the 47 County Assemblies.

Second, national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms. This qualifies the idea and practice that in the disciplined forces10 that obligates one to obey any command first and ask questions later.11 And that the order is more authoritative or higher than the issuer or, in Swahili, amri ni kubwa kuliko mwenye kuitoa [ to discuss lessons from the NYS pre University programme….]

Third, in performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya.

And fourth, recruitment by the national security organs should reflect the diversity of the Kenyan people in equitable proportions.12 All security is subject to civilian authority,13 hence the

begins-with-wave-of-police-crackdowns/2020/03/28/358327aa-7064-11ea-a156-0048b62cdb51_story.html

(accessed April 4, 2020). 10 To problematize and contextualize force vis-à-vis service; disciplined vis-à-vis armed forces…. 11 Or in Swahili Tii amri. Uliza swali baadaye. To cite [Hen Why Has Ha it…. On offence against discipline….]

12

Articles 10, 27, 73, 244, 246 and 249 Constitution of Kenya, 2010. See also Petition 309 of 2014, Independent

Policing Oversight Authority & Another v. Attorney General & 660 others [2014] eKLR. The recruitment exercise

was nullified for being ‘unconstitutional.’

3

President as Commander in Chief (C-in-C), chair of the National Security Council (NSC). What of the role of the Governor at county level?14

The foregoing and related roles, principles and values question the increasing militarization and

“securitization” of the civil service and public life under the Kenyatta 2 administration.15 [To

discuss principles of the criminal justice system….]

12.4 Methodology on Security and the Criminal Justice System in Kenya andAfrica

In the context of the emerging conceptualization, problematization and contextualization of security and criminal justice system in Kenya and Africa, what is the most appropriate methodology to study, analyse, operationalize, administer, implement reforms and again implement security and criminal justice system? There is at least three-pronged methodology. First, what are the key issues regarding security and criminal justice system as a first world of political economy or existence issues in Kenya and Africa?16

Second, what are the key issues regarding security and criminal justice system as a second world or scientific issues capable of stkudy analysis using the tools of the physical (national) and second sources, including Science Technology Engineering and Mathematics (STEM) and the Humanities and Social Sciences (HASS)….?

Third, what are key security and criminal justice system isues in Kenya and Africa as a mattr of meta-science; or discourse analysis; or epistemology?17

13

Art 239(5) of the Constitution of Kenya. It states: “The national security organs are subordinate to civilian authority.”

14

Cf the views of Mr Francis Kimemia as PS (delete with BS in the context of the draft or proposed Bill) vis-à-vis Mr Kimemia as Governor Nyandarua Coutny [vis-à-vis the role of County Commissioner ex OCPD]….To cite.

15

Eg Immigration, DPP, Nairobi Metropolitan Services (NMS)…. Cf Makau Mutua (2020) “Stop militarizing civilian life; We have enough competent wananchi for jobs,” Daily Nation, Nairobi, May 16, 2020, at

https://www.nation.co.ke/kenya/blogs-opinion/opinion/stop-militarising-civilian-life-we-have-competent-wananchi-

for-jobs-489156 (accessed 16/8/2020). Has the militarization of civil service and public life also led o the politicization of the military and some security agencies? There has been intense politicking among Governor Sonko, General Badi, the Director General (DG) of Nairobi Metropolitan Service (NMS), (ex) Speaker of Nairobi City County Assembly Ms Beatrice Elachi regarding the transfer of powers (or takeover) of the Nairobi City County Government to the NMS and the National Government. President Kenyatta has been involved in the debate. President Kenyatta stated that General (Jemedari) Badi is not interested in being Governor….(To cite).

16 Cf Mouton, J. (2001). How to succeed in your master's and doctoral studies: A South African guide and resource

book. Van Schaik.

17 Consider the Sihanya Mentoring methodology in Chapters of CODRALKA 1 & 2. IPILKA 1 & 2; Ben Sihanya

92016) Sihanya Mentoring LLD Thesis Guidelines, IL & SM; Ben Sihanya 92016) Sihanya Mentoring Dissertation Guidelines, IL & SM; Ben Sihanya 92016) Sihanya Mentoring LLM Research Project Paper and Thesis Guidelines, IL & SM; Ben Sihanya 92016) Sihanya Mentoring LLB Research Paper and Dissertation Guidelines, IL & SM.

4

12.5 Security administration in Kenya: Government security agencies

Security in Kenya is administered by the National Government through the National Police Service, the National Intelligence Service and the Kenya Defence Forces. Section 4 of the National Security Council Act 2011 (as amended) tasks the National Security Council (NSC) with addressing both internal and external aspects of national security.

12.5.1 National Police Service: The roles of the National Police Service, Inspector-General of Police, and Deputy Inspector General etc.18

There is established the National Police Service (NPS) is established under Article 243 of the Constitution of Kenya 2010. It consists of the Kenya Police Service and the Administration Police Service. The objects and functions of the National Police Service are:19

(a) To strive for the highest standards of professionalism and discipline among its members (b) To prevent corruption and promote and practice transparency and accountability (c) To comply with constitutional standards of human rights and fundamental freedoms20 (d) To train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and (e) To foster and promote relationships with the broader society.

18

Cf. National Police Service Commission (NPSC) v. Inspector General of National Police [2013] eKLR; A-G’s

advisory on the matter; Independent Policing Oversight Authority (IPOA’s) perspective on Deputy Inspector General(s)…IPOA, the public and civil society put pressure on Parliament to uphold the National Police Service Act as was, to promote gender balance on the two positions of Deputy Inspector General (DIGs) being of the

“opposite gender.” They succeeded. President Mwai Kibaki had appointed Ms Grace Kaindi and Mr Samuel Arachi

as the Deputy Inspector General(s) of Police, and Administration Police respectively. The then Prime Minister, Raila

Odinga claimed that these appointments were ‘unconstitutional.’ See Daily Nation (2013) “Raila rejects Kibaki

police appointments,” Nairobi, 25/1/2013 at https://www.nation.co.ke/News/politics/Raila-rejects-Kibaki-police- appointments/-/1064/1675768/-/wq839iz/-/index.html (accessed April 3, 2020).

19

Article 244 of the Constitution states, “The National Police Service shall— (a) strive for the highest standards of professionalism and discipline among its members; (b) prevent corruption and promote and practice transparency and accountability; (c) comply with constitutional standards of human rights and fundamental freedoms; (d) train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and (e) foster and promote relationships with the broader society.”

20

See also Article 10 of the Constitution of Kenya, 2010. It states, “(1) The national values and principles of

governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them–– (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. (2) The national values and principles of governance include–– (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; (c) good governance, integrity, transparency and accountability; and (d) sustainable development.”

5

Significantly, the National Police Service were vested with the management of Kenya Ferry Services by President Uhuru Kenyatta in the wake of novel corona virus disease 2019(COVID- 19) in 2020.21 Constitutionality? Legality? Validity? Legitimacy?

Article 245 establishes the command of the National Police Service. It establishes the office of the Inspector-General (IG) of the National Police Service.22 The Inspector General is appointed by the President with the approval of Parliament,23 and he exercises “independent command over the National Police Service.”24 He or she may also perform any other functions prescribed by national legislation.25

From the establishment of the office of the Inspector General under the 2010 Constitution, and in the Kibaki and Kenyatta administration,26 there had been three substantive office holders and one acting office holder. They include; David Mwole Kimaiyo (2012-2014); Ag IG Samuel Arachi (31/12/2014-15/3/2015); Joseph Kipchirchir Boinett (15/3/2015-2019); Hillary Nzioki Mutyambai (8/4/2019-).27

The Kenya Police Service and the Administration Police Service are each headed by a Deputy Inspector-General appointed by the President in accordance with the recommendation of the National Police Service Commission.

Under Article 245(4), the Cabinet Secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to--

21

See The Presidency (2020) “Presidential Address on the State Interventions to Cushion Kenyans Against

Economic <https://www.president.go.ke/2020/03/25/presidential-address-on-the-state-interventions-to-cushion-kenyans- against-economic-effects-of-covid-19-pandemic-on-25th-march-2020/> (accessed April 3, 2020). At section

  • Effects
  • of
  • Covid-19
  • Pandemic
  • on

  • 25th
  • March,
  • 2020,”

  • 25/3/2020,
  • at

15(2), the President Kenyatta says, that with immediate effect, the management of the Kenya Ferry Services is vested in the National Police Service, the Coast Guard and the National Government Administration Officers (NGAO).”

22

Article 245(1) Constitution of Kenya 2010, “There is established the office of the Inspector-General of the

National Police Service.” 23 What of the role of the NPSC, and earlier Police Service Commission, Public Service Commission….historically?

24

Article 245(2) Constitution of Kenya 2010 states, “(2) The Inspector-General–– (a) is appointed by the President with the approval of Parliament; and (b) shall exercise independent command over the National Police Service, and

perform any other functions prescribed by national legislation.”

25

Including determining the deployment and transfer of officers in the service as provided in Section 10(g) of the
National Police Service Act… 26 up to the time of writing, this chapter.

27 ….

6

(a) the investigation of any particular offence or offences; (b) the enforcement of the law against any particular person or persons; or (c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.

Any direction given to the Inspector-General by the Cabinet secretary responsible for police services under clause (4), or any direction given to the Inspector-General by the Director of Public Prosecutions under Article 157(4), is supposed to be in writing.28

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    EVIDENCE REPORT No 130 IDSAddressing and Mitigating Violence Tangled Ties: Al-Shabaab and Political Volatility in Kenya Jeremy Lind, Patrick Mutahi and Marjoke Oosterom April 2015 The IDS programme on Strengthening Evidence-based Policy works across seven key themes. Each theme works with partner institutions to co-construct policy-relevant knowledge and engage in policy-influencing processes. This material has been developed under the Addressing and Mitigating Violence theme. The material has been funded by UK aid from the UK Government, however the views expressed do not necessarily reflect the UK Government’s official policies. AG Level 2 Output ID: 74 TANGLED TIES: AL-SHABAAB AND POLITICAL VOLATILITY IN KENYA Jeremy Lind, Patrick Mutahi and Marjoke Oosterom April 2015 This is an Open Access publication distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are clearly credited. First published by the Institute of Development Studies in April 2015 © Institute of Development Studies 2015 IDS is a charitable company limited by guarantee and registered in England (No. 877338). Contents Abbreviations 2 Acknowledgements 3 Executive summary 4 1 Introduction 6 2 Seeing like a state: review of Kenya’s relations with Somalia and its Somali population 8 2.1 The North Eastern Province 8 2.2 Eastleigh 10 2.3 Ethnic Somali and Kenya’s politics 11 2.4 Devolution and local-national links 13 2.5 Summary 13 3 ‘Head
  • Inside Kenya's War on Terror: the Case of Lamu

    Inside Kenya's War on Terror: the Case of Lamu

    Inside Kenya’s war on terror: the case of Lamu Thomas Nyagah, James Mwangi and Larry Attree Inside Kenya’s war on terror: This Saferworld article takes readers on an in-depth journey into Lamu County on Kenya’s the case of Lamu coast: tourist paradise, investment hub, flashpoint of ethnic and religious tensions over land, I. Lamu becomes a victim: jobs and representation, and battleground in Kenya’s internationally-backed war on terror “They wanted to start a civil with al-Shabaab. Through the words of local people, it tells the story of how violence ignited war” in Lamu in 2014, how this violence was kindled, and what needs to be done to put the fire out. II. Tinderbox of grievances: inequality and politics in Lamu Arguing that counter-terror and countering violent extremism efforts have not solved Lamu’s III. Kenya’s war on terror problems, it calls for fresh thinking to overcome the conflict risks that lie ahead. Terror IV. “We’re being punished”: attacks and the response to them in Lamu are revealing of broader dynamics in Kenya, and war on terror comes to Lamu hold important lessons for the way the US, UK and others engage with terrorism and conflict. V. Countering violent Lamu’s story reflects lessons from our global work to research and explore constructive extremism: not yet a peace strategy alternatives to counter-terrorism approaches. This research is based on a series of focus group discussions and interviews with officials, journalists, community members, VI. Foreign friends: lending a businessmen, politicians, religious leaders and activists in Lamu.
  • Are We Under Siege? the State of Security in Kenya an Occasional Report (2010 – 2014)

    Are We Under Siege? the State of Security in Kenya an Occasional Report (2010 – 2014)

    ARE WE UNDER SIEGE? THE STATE OF SECURITY IN KENYA AN OCCASIONAL REPORT (2010 – 2014) KENYA NATIONAL COMMISSION ON HUMAN RIGHTS © 2014 0 | P a g e CONTENTS ABBREVIATIONS ...................................................................................................................................... 3 ACKNOWLEDGEMENT ............................................................................................................................ 4 FOREWORD ................................................................................................................................................ 6 KNCHR MANDATE ................................................................................................................................... 7 METHODOLOGY ....................................................................................................................................... 7 SUMMARY OF KEY FINDINGS AND RECOMMENDATIONS ............................................................ 9 Key Findings ............................................................................................................................................. 9 KEY RECOMMENDATIONS ................................................................................................................... 11 1.0 INTRODUCTION ................................................................................................................................ 13 2.0 KNCHR’s Interventions on Insecurity .................................................................................................