CHAPTER 15 ADMINISTERING AND REGULATING SECURITY AND CRIMINAL JUSTICE IN KENYA AND AFRICA This Chapter may be cited as Ben Sihanya (forthcoming 2021) “Administering and Regulating Security and Criminal Justice in Kenya and Africa,” in Ben Sihanya (2021) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya Sihanya Mentoring & Prof Ben Sihanya Advocates, Nairobi & Siaya
15.1 Conceptualizing 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 problematized 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 also 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,” The 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. 2 Cf. related terms: security, national security, public security, peace.... 3 To cite a variety of sources. See the Convention Against Torture and Other Cruel, Inhuman Or Degrading Treatment Or Punishment (ratified by Kenya on February 21, 2020); Some examples of cruel, degrading inhuman 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
treatment include being stripped naked, flogged, tortured, detained in water logged cells, and being denied food. These were especially seen during the era of President Daniel Arap Moi. See Lucy Wanjiku Mukaru (suing as the legal representative of Mukaru Ng’ang’a–Deceased) v. Attorney General [2018] eKLR…. 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 2004-2021, Prof Ben Sihanya Advocates & Sihanya Mentoring. 5 United Nations Committee against Torture report, Concluding Observations on Kenya (2008), January 11, 2009, at https://digitallibrary.un.org/record/646996?ln=en (accessed December 18, 2020)…. 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,” Daily Nation, 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
It was also reported that police killed at least fifteen (15) innocent Kenyans and the use of excessive force during the enforcement of the curfew in Kenya.10 How is security conceptualized, problematized, and contextualized in the post 2010 Kenya and Africa?
15.2 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 five-pronged 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?
15.3 Principles of National Security in Kenya and Africa What are the constitutional, policy and legislative frameworks on security in Afro-Kenyan constitutional democracy, constitutional sociology and sustainable development? Article 238(2) of the Constitution lays down the principles of national security. These include the following four (4) principles.
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 forces11 that obligates one to obey any command first and ask questions later.12 And that the order is more authoritative or higher than the issuer or, in Swahili, amri ni kubwa kuliko mwenye kuitoa (an order is greater than he who commands it) [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. This is one of the fundamental issues that the Building Bridges Initiative (BBI) sought to address. begins-with-wave-of-police-crackdowns/2020/03/28/358327aa-7064-11ea-a156-0048b62cdb51_story.html (accessed April 4, 2020). 10 Al Jazeera (2020) “Kenyan police ‘killed 15’ since start of coronavirus curfew,” Al Jazeera, June 5, 2020, at https://www.aljazeera.com/news/2020/6/5/kenyan-police-killed-15-since-start-of-coronavirus-curfew (accessed December 18, 2020). 11 To problematize and contextualize force vis-à-vis service; disciplined vis-à-vis armed forces…. 12 Or in Swahili Tii amri. Uliza swali baadaye. To cite [“Hen Why Hes Hact….” On offence against discipline….] 3
And fourth, recruitment by the national security organs should reflect the diversity of the Kenyan people in equitable proportions.13 All security is subject to civilian authority,14 hence the President as Commander in Chief (C-in-C), and Chair of the National Security Council (NSC) under Art. 240(2)(a) Constitution of Kenya 2010. The Building Bridges Initiative (BBI) 2020 Report and the Constitution of Kenya (Amendment) Bill 2020 proposed the inclusion of the Prime Minister (PM) in the National Security Council (Art. 240(2) in Clause 64 of the Bill). What of the role of the Governors at county level?15
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.16…. [To discuss principles of the criminal justice system….]…
15.4 Methodology on Security and the Criminal Justice System in Kenya and Africa 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, analyze, 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?17
Second, what are the key issues regarding security and criminal justice system as a second world or scientific issues capable of study analysis using the tools of the physical (national) and second
13 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.’ 14 Art. 239(5) of the Constitution 2010states that, “the national security organs are subordinate to civilian authority.” 15 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 County [vis-à-vis the role of County Commissioner ex OCPD]….To cite. 16 E.g. 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 was intense politicking among the then Governor Mike Mbuvi Sonko, Nairobi Metropolitan Service (NMS) General Mohammed Badi, the Director General (D-G) 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 II was also involved in the debate. President Uhuru Kenyatta stated that General (Jemedari) Badi was not interested in being Governor…. Allan Mungai (2020) “Sonko’s doublespeak on Badi despite Uhuru public censure,” Standard, Nairobi, August 13, 2020, at https://www.standardmedia.co.ke/nairobi/article/2001382276/sonkos-doublespeak-on-badi-despite-uhuru-public- censure (accessed December 17, 2020). 17 Cf. Mouton, J. (2001). How to succeed in your master's and doctoral studies: A South African guide and resource book. Van Schaik. 4
sources, including Science Technology Engineering and Mathematics (STEM) and the Humanities and Social Sciences (HASS)….?
Third, what are key security and criminal justice system issues in Kenya and Africa as a matter of meta-science; or discourse analysis; or epistemology?18
15.5 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.
15.5.1 National Police Service: The roles of the National Police Service, Inspector-General of Police, and Deputy Inspector General etc.19 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:20
(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 freedoms21
18 Consider the Sihanya Mentoring methodology in Chapters of CODRALKA 1, 2 & 3. IPILKA 1 & 2; Ben Sihanya (2021) Sihanya Mentoring LLD Thesis Guidelines, SM & Prof Ben Sihanya Advocates; Ben Sihanya (2021) Sihanya Mentoring Dissertation Guidelines, IL & SM; Ben Sihanya (2021) Sihanya Mentoring LLM Research Project Paper and Thesis Guidelines, IL & SM; Ben Sihanya (2021) Sihanya Mentoring LLB Research Paper and Dissertation Guidelines, IL & SM. 19 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). 20 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.” 21 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) 5
(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.
Significantly, the National Police Service (NPS) were vested with the management of Kenya Ferry Services by President Uhuru Kenyatta in the wake of novel coronavirus disease 2019 (COVID-19) in 2020.22 Constitutionality? Unconstitutionality? Counter-constitutionality? Legality? Illegality? Validity? Legitimacy? Illegitimacy?
Article 245 establishes the command of the National Police Service. It establishes the office of the Inspector-General (IG) of the National Police Service.23 The Building Bridges Initiative (BBI) 2020 Report, and the Constitution of Kenya (Amendment) Bill 2020 propose to enhance the powers of the Inspector-General who has independent command or authority over the National Police Service (Art. 245, clause 66 of the Bill). It states that the I-G shall:
“(i.) exercise independent command over the service; (ii.) determine promotions and transfers within the service; (iii.) disciplinary control through suspension of officers in the service.”24
The Inspector General is appointed by the President with the approval of Parliament,25 and he exercises “independent command over the National Police Service.”26 He or she may also perform any other functions prescribed by national legislation.27
From the establishment of the office of the Inspector General under the 2010 Constitution, and in the Kibaki and Kenyatta II administration,28 there had been three (3) substantive office holders 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.” 22 See The Presidency (2020) “Presidential Address on the State interventions to cushion Kenyans against economic effects of Covid-19 pandemic on 25th March, 2020,” 25/3/2020, at 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 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).” 23 Article 245(1) Constitution of Kenya 2010, “There is established the office of the Inspector-General of the National Police Service.” 24 Clause 66 on the proposed amendment to Art. 245, Constitution of Kenya (Amendment) Bill 2020; Rawlings Otieno (2020) “Police chief and DCI to wield more power if Bill sails through,” Standard, Nairobi, November 26, 2020, at https://www.standardmedia.co.ke/nairobi/article/2001395232/police-chief-and-dci-to-wield-more-power-if- bill-sails-through (accessed December 18, 2020) 25 What of the role of the NPSC, and earlier Police Service Commission, Public Service Commission….historically? 26 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.” 27 Including determining the deployment and transfer of officers in the service as provided in Section 10(g) of the National Police Service Act… 6
and one (1) 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); and Hilary Nzioki Mutyambai (8/4/2019- ).29
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--
(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.30
The National Police Service Commission is also established under Article 246 of the Constitution. Its functions are: First, to recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service.
Second, observing due process, exercise disciplinary control over and remove persons holding or acting in offices within the Service, and tThird, to perform any other functions prescribed by national legislation.
15.5.1.1 Kenya Police Service The Kenya Police Service was formerly called “regular” police.31
28 up to the time of writing, this chapter. 29 ….Hillary Orinde (2019) “Who is Hillary Mutyambai, the Inspector General nominee,” Standard, Nairobi, March 14, 2019, at https://www.standardmedia.co.ke/nairobi/article/2001316587/who-is-hillary-mutyambai (accessed December 18, 2020). 30 Article 245 (5) Constitution of Kenya, 2010 states, “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), shall be in writing.” 31 Joseph Muraya (2019) “AP and Regular Police merger plan stirs anxiety, hope in the service,” Capital FM, Nairobi, 9/7/2019, at https://www.capitalfm.co.ke/news/2019/07/ap-and-regular-police-merger-plan-stirs-anxiety- hope-in-the-service/ (accessed April 6, 2020). 7
The functions of the Kenya Police Service are defined in section 22 of the National Police Service Act, 2011. The NPS functions include:32
(a) provision of assistance to the public when in need (b) maintenance of law and order (c) preservation of peace (d) protection of life and property (e) investigation of crimes (f) collection of criminal intelligence (g) prevention and detection of crime (h) apprehension of offenders (i) enforcement of all laws and regulations with which it is charged; and (j) performance of any other duties that may be prescribed by the Inspector-General under the Act or any other written law from time to time.
The Building Bridges Initiative (BBI) Reports proposed the establishment of the Kenya Police Council for overall policy coordination of the National Police Service (Art. 246). Following consultations and editing based on the submissions, this proposal was later reviewed Constitution of Kenya (Amendment) Bill 2020 as a product of general consensus to enhance the powers and functions of the NPSC for the rationalization and harmonization of powers and functions between the NPSC and the Inspector-General of Police.33 The Kenya Police Council was also developed.
Who has the power over appointments, deployments, vetting and transfers of police officers?34
What can be done to reinforce the security of VIPs in Kenya? Cf. The killings of former Kabete Member of Parliament (MP), Hon George Muchai; the parents of Nyakach MP Aduma Owuor, and former Moyale MP Philip Godana?
In September 2018, President Uhuru Kenyatta unveiled new uniforms for the General Duty Police Officers.35 In October 2020, President Uhuru Kenyatta and the Inspector-General of
32 To integrate constitutional law and political economy on security and criminal justice system; to compare to APS….KDF, NIS…. County and regional administration. 33 Rawlings Otieno (2020) “Police chief and DCI to wield more power if Bill sails through,” Standard, Nairobi, November 26, 2020, at https://www.standardmedia.co.ke/nairobi/article/2001395232/police-chief-and-dci-to-wield- more-power-if-bill-sails-through (accessed December 18, 2020) 34 The IG may exercise delegated power to “appoint and deploy police officers,” “assignment” as a ‘temporary measure’ during ‘emergencies’ to ensure that there is no vacuum in the security system of the country, under Section 10(2) of the National Police Service Commission Act. This power is not unilateral. See International Centre for Policy and Conflict v. Attorney General& 2 Others [2014] eKLR on the issue of the appointment of 47 county Police commanders by the Inspector General of Police as illegal under Article 246(3) Constitution of Kenya 2010 vis a vis the role(s) of the National Police Service Commission (NPSC) in the appointment, deployment, and transfer of police officers in Kenya…; Section 10 of the National Police Service Act, 2011 does not confer powers of transfer on the Inspector General. 8
Police, Mr Hillary Mutyambai unveiled a new set of jungle uniform for the General Service Unit (GSU) as part of the Jubilee Government’s continued “reform” of the National Police Service.36 What was the significance or impact of this change? Was it meant to reflect change in the manner in which police officers work?37
15.5.1.2 Administration Police Service in Kenya The Administration Police Service was formerly known as Administration Police (AP). Its functions are spelt in section 26 of the National Police Service Act, 2011. The functions of the Administrative Police Service include:38
(a) provision of assistance to the public when in need (b) maintenance of law and order (c) preservation of peace (d) protection of life and property (e) provision of border patrol and border security (f) provision of specialized stock theft prevention services (g) protection of Government property, vital installations and strategic points as may be directed by the Inspector-General (IG) (h) rendering of support to Government agencies in the enforcement of administrative functions and the exercise of lawful duties (i) co-ordinating with complementing Government agencies in conflict management and peace building (j) apprehension of offenders (k) performance of any other duties that may be prescribed by the Inspector-General under the Act or any other written law from time to time
35 Harry Misiko (2018) “The blues: Kenyans take issue with new police uniform,” Daily Nation, Nairobi, 16/12/2019, at https://www.nation.co.ke/news/Kenya-Police-New-Uniform/1056-4758856-rfr4hbz/index.html (accessed 16/12/2019). 36 Patrick Vidija (2020) “Police reforms: GSU adopts new jungle uniform,” Star, Nairobi, October 29, 2020, at https://www.the-star.co.ke/news/2020-10-29-police-reforms-gsu-adopts-new-jungle-uniform/ (accessed December 18, 2020). 37 It was reported that the uniforms would ‘enhance better visibility for the officers.’ See Sara Okuoro “Uhuru makes major changes in Police and unveils new uniform for General Duty officers,” Standard, Nairobi, 13/9/2018, at https://www.standardmedia.co.ke/article/2001295500/uhuru-makes-major-changes-in-police-and-unveils-new- uniform-for-general-duty-officers-photos (accessed April 6, 2020). It is arguable that the change of uniforms may also be directed towards bridging the gap, inequity, and foster togetherness and harmony in the police: “the differences between junior and senior officers will be only ranks and equivalent decorations, neither the colour nor the quality of the uniform.” See Tom Kagwe (2018) “Setting the record straight on police transformation,” Star, Nairobi, 9/10/2018, at https://www.the-star.co.ke/news/big-read/2018-10-09-setting-the-record-straight-on-police- transformation/ (accessed April 6, 2020). What about the allegations of irregularities in the procurement of new police uniforms…. 38 To integrate constitutional sociologyand political economy on security and criminal justice system; to compare to APS….KDF, NIS…. County and regional administration. 9
The Administrative Police Service (APS) has evolved from the African Police (AP) in colonial Kenya, Training Police (TP) later; and the APS.39
15.5.1.3 Directorate of Criminal Investigation (DCI) in Kenya Directorate of Criminal Investigation (DCI) was formerly known as Criminal Investigation Department (CID). It is established under section 28 of the National Police Service Act, 2011 and it operates under the direction, command and control of the Inspector-General. DCI has functions in the Criminal Justice System (CJS) and in security.40
15.5.1.3.1 Functions of the Directorate of Criminal Investigation in Kenya The functions of the Directorate are eleven (11). These are:41
(a) collect and provide criminal intelligence (b) undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber crime among others (c) maintain law and order (d) detect and prevent crime (e) apprehend offenders (f) maintain criminal records (g) conduct forensic analysis (h) execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution (i) co-ordinate country Interpol Affairs (j) investigate any matter that may be referred to it by the Independent Police Oversight Authority; and (k) perform any other function conferred on it by any other written law.
What are the administrative and organization frameworks on the functions of the Directorate of Criminal Investigation in Kenya?
15.5.1.3.2 Functions of the Director of Criminal Investigations in Kenya The functions of the Director of Criminal Investigations are defined in section 34 of the National Police Service Act, 2011 as follows:42
(a) be responsible for the effective and efficient administration and operations of the Directorate
39 To problematize and contextualise these…. What functions have Aps performed historically? To cite books and articles on the development of police force and “service.” 40 Discuss …. cf. Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA)…. South Africa, Uganda, Tanzania, Rwanda,… (a security intense administration….) 41 To integrate constitutional law and political economy of policing, security and CJS…. To compare roles of other agencies that conduct inquiry, investigations, e.g. EACC (KACC)… to compare the contemporary and historical functions of the office of the A-G, Deputy Public Prosecutions, DPP… 42 Ditto…. with a focus on the officers: IGP, DIG (KPS), DIG (APS), A-G, DPP, Chairperson and Director, EACC (KACC, KACA…)…. 10
(b) provide strategic guidance and direction for the Directorate (c) be responsible for the preparation of the budget and planning for the directorate (d) monitor and evaluate the Directorate (e) undertake supervision of the Directorate (f) co-ordinate training, research and development in the Directorate (g) provide internal oversight of the Directorate (h) improve transparency and accountability in the Directorate (i) co-operate and engage in joint security operations with the Deputy Inspectors-General of both the Kenya Police Service and the Administration Police Service, other Government departments and security organs, where necessary, when relevant, to ensure the safety and security of the public; and (j) perform any other functions that may be assigned by the Inspector General under this Act or any other law
President Uhuru Kenyatta in 2018 “directed” the then Inspector General (I-G) Joseph Boinnet and Interior Cabinet Secretary Dr Fred Matiang’i to address the duplication of functions or roles in the National Police Service command structure.43 To this extent, one of the recommendations was that the Deputy IG-Administration Police would focus on border security while the Director of Criminal Investigations (DCI) would handle the criminal investigations.44
In 2019, the Cabinet Secretary for Interior and National Government Coordination presided over the merger of the Administration Police and the Kenya Police Service (“Regular” Police).45
What challenges have faced the operations of the DCI as office and as Director and in delivering in their mandate? Is it a security office? Criminal justice system office? Or both? There have were allegations of internal interference with investigations, favouritism, institutional rivalry with the Office of the DPP. For instance, in the Daniel Manduku corruption case,46 Tob Cohen murder trial47 and the investigation into the murder of the late Sergeant Kipyegon Kenei.48
43 To problematize “directed;” and cross reference to discussion on IGP being bound only by the Constitution and law, and not subject to directions by any authority or officer on technical functions….consultations on policy functions…. 44 Sara Okuoro (2018) “Uhuru makes major changes in Police and unveils new uniform for General Duty officers,” Standard, Nairobi, 13/9/2018, at https://www.standardmedia.co.ke/article/2001295500/uhuru-makes-major-changes- in-police-and-unveils-new-uniform-for-general-duty-officers-photos (accessed April 6, 2020). 45 Cyrus Ombati (2019) “Analysis: What do new changes portend for the Administration Police Service?” Standard Digital, Nairobi, July 12, 2019, at https://www.standardmedia.co.ke/article/2001333595/what-do-new-changes- portend-for-aps (accessed 9/4/2020). 46 To elaborate; cite. See Sam Kiplagat (2020) “Manduku free as DPP and DCI offices clash in court,” Business Daily, March 4, 2020, at https://www.businessdailyafrica.com/bd/economy/manduku-free-as-dpp-and-dci-offices- clash-in-court-2282534 (accessed May 2, 2021). 47 The case of septic (water) tank “Wairimu”…. To cite the cases, security, CJS issues….See Kamore Maina and Allan Mungai (2019) “How MP's ex-husband helped plot Dutch billionaire Tob Cohen’s murder,” Standard, Nairobi, at https://www.standardmedia.co.ke/entertainment/local-news/2001341913/how-mps-ex-husband-helped- plot-dutch-billionaire-tob-cohens-murder (accessed December 18, 2020); The late Tob Cohen’s widow Mrs Sarah Wambui alleged that Tob Cohen’s killers enjoyed DCI protection, and that Cohen had been murdered over their 11
Thus, reforms were debated in the context of the Building Bridges Initiative (BBI) context including on the need to strengthen the DCI’s office in terms of financial (semi) autonomy or independence, functions, resources and capability to attract and retain high quality human resources. Clause 65 of the Constitution of Kenya (Amendment) Bill, 2020 proposed to amend Art. 243 to establish the DCI as a third arm of the National Police Service (NPS). There are also arguments for increased interdependence and accountability of the DCI….49
What are the three key debated options?50 Merits and demerits as well as transitional and consequential implications of each of every one of the three options?51
15.5.1.4 General Service Unit (GSU) in Kenya The General Service Unit (GSU) is now an appendage of the Kenya Police Service. The Unit is established to support the following functions of the Kenya Police Service in accordance with Section 24 of the National Police Service Act, 2011. It functions are:52
a. Providing security to the President, state houses or lodges b. Providing security for selected foreign Airlines c. Providing security to vital installations and strategic points d. Controlling rioters’ mobs and civil disturbance e. Carrying out anti-poaching operations and escort duties f. Containing banditry and cattle rustling g. Countering terrorism activities and insurgencies
15.5.2 National Intelligence Service in Kenya The National Intelligence Service (NIS) is established under Article 242 of the Constitution. It is responsible for security intelligence and counter intelligence to enhance national security in
Sh500 million matrimonial home in Kitisuru… Paul Ogemba (2020) “Sarah Cohen claims Tob Cohen was murdered while she was in custody,” Standard, November 10, 2020, at https://www.standardmedia.co.ke/nairobi/article/2001393335/sarah-cohen-claims-husband-was-killed-when-she- was-in-custody (accessed December 18, 2020); Republic v Sarah Wairimu Kamotho [2019] eKLR… 48 ….Cyrus Ombati and Anyango Otieno (2020) “Who killed Kenei and why? DCI blames DP office,” Standard, March 6, 2020, at https://www.standardmedia.co.ke/nairobi/article/2001363073/dci-puts-dp-office-at-centre-of- keneis-murder (accessed April 30, 2021). 49 See the Police Reforms Task Force Report (The Ransley Report at https://www.scribd.com/doc/245815329/Ransley-Report (accessed December 18, 2020)); Revised Police Reforms Document, 2015-18; National Police Service Strategic Plan, 2019; Proposals of the National Association of Retired Police Officers of Kenya (NARPOK)…. DCI perspectives…., IG-P perspectives…., DPP perspectives…. 50 First, DCI as one of the four national security organs and joining KDF, NIS, NPS under Art 239(1)? Implications of IG-P and NPS losing power to exercise “independent or PS command” over DCI, and loosing agency, or DCI still performs functions? Implications of DCI siting in the National Security Council (NSC)? Falling under the Ministry of Interior Coordination of National Government on policy and Cabinet…. Second, DCI as one of the DIGs under Art 245 (3). Implications? Third, as part of CJS under A-J? Justice portfolio? 51 …. 52 See Kenya Police Service website, at http://www.kenyapolice.go.ke/2015-09-07-17-41-13/general-service- unit.html (accessed 3/9/2019). 12
accordance with this Constitution. It also performs any other functions prescribed by national legislation.53
The NIS developed from the Special Branch (or “Political Police”) in colonial, Kenyatta 1’s, Moi’s Kenya.54 Then it was later renamed the Directorate of Security Intelligence (DSI)55…. It was later reconstituted under an Act of Parliament into the National Security Intelligence Service (NSIS) under the National Intelligence Security Act, 1998….56 Under the Bomas Draft Constitution 2004, Art. 277 proposed the establishment of the NIS to be headed a Director- General, appointed by the President. The Constitution of Kenya 2010 constitutionalized the office as National Intelligence Service (NIS) and not NSIS…57
What were the Building Bridges Initiative (BBI) 2019 and 2020 Reports proposals and debates on the NIS, and generally the security and criminal justice system?58 The BBI 2019 and 2020 Reports proposed to amend the National Intelligence Service Act, No. 28 of 2012 to expand the definition of “vettable positions” to provide that the NIS vets all applicants to public office.
15.5.3 Kenya Defence Forces: Kenya Army, Kenya Navy and Kenya Air Force…… [cf. South Africa, Nigeria, Uganda, United States (US), United Kingdom (UK)….] The Kenya Defence Forces ( KDF) is established under Article 241 of the Constitution. KDF consist of three branches (?). First, the Kenya Army. Second, the Kenya Air Force. Third, Kenya Navy.
The functions of KDF are defined in Article 241 (3) as follows: First, they are responsible for the defence and protection of the sovereignty and territorial integrity of the Republic.
Second, they shall assist and cooperate with other authorities in situations of emergency or disaster, and report to the National Assembly whenever deployed in such circumstances.
Third, they may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly.59
53 See the National Intelligence Service Act (NIS), 2012 54 ….The Special Branch was widely used by incumbent regimes to harass political opposition…. 55 ….This was created as a department under the office of the President, created under the Presidential Charter of 1978 and Police Act. …. 56 What are the Bomas provisions and debates on NSIS? 57 Why?.....The intention was to create a civilian agency without police powers…. 58 See the Building Bridges Initiative (BBI) 2019 and 2020 Reports at https://www.bbi.go.ke/ (accessed December 18, 2020). 59 Article 241 (3) (c) Constitution of Kenya, 2010. 13
The Constitution also establishes a Defence Council which is responsible for the overall policy, control, and supervision of the Kenya Defence Forces; and performs any other functions prescribed by national legislation (see the Kenya Defence Forces Act).
What of Coast Guards?60
How have the KDF and its components devolved in pre-colonial, colonial, and post colonial Kenya?.... across the four presidencies? First, there were no (national) standing defence forces (or “armies”) in pre-colonial Kenya. How did the tribes, clans, and families defend themselves or secure external security? Compare the role of Maasai morans.61 Second, under colonization, there was emphasis on the army….partly because of the limited (air) technology….62 And in the context of the need to reconnect Kenya into the first and second word war….(1914-18; 1939-45).
Third, Kenyatta 1 administration had the challenge of re-orienting the armed forces to protect an independent African state that was still influenced by the British and the commonwealth. Tribal interests became stronger. There were mutinies….(1964 mutiny by a section of the Kenya Army63…) and coup plots, including 1971 and 1982.....64
Fourth, under the Moi administration, political intolerance through the constitutionalization of Kenya African National Union (KANU) as the only political party, ethnic exclusion, and economic hardships in Kenya and in the military contributed to the coup attempt of August 1, 1982.65 This led to the reorganization of the KAF into 82 Airforce and back to KAF (court martial…High Court decision….) Fifth, KDF under President Mwai Kibaki. Sixth, KDF under President Uhuru Kenyatta.
60 See the Kenya Coast Guard Service Act, 2018, No. 11 of 2018; Public Order No. 1 on the Coronavirus Pandemic by President Uhuru Kenyatta as part of the Presidential Address on the State interventions to cushion Kenyans against economic effects of Covid-19 Pandemic on 25th March, 2020, bestowed the management of Kenya Ferry Services on the Coast Guard, the National Police Service and the National Government Administration Officers (NGAO). See the Presidency (2020) “Presidential Address on the State Interventions to Cushion Kenyans Against Economic Effects of Covid-19 Pandemic on 25th March, 2020,” 25/3/2020, at
What reforms to KDF should inform the succession and transition to the post Kenyatta Kenya?66
What is the place of the following in security? Are their functions constitutional? Legal? Valid? Legitimate?
Provincial Administration?67 National Youth Service (NYS)?68 - being given security functions unconstitutionally… Kenya Forest Service (KFS)?69 Private security agencies?70
15.6 Efficiency and Equity of National Security System in Kenya The emergence of (tribal) gangs, vigilantes and militia including, Mungiki, Sungu Sungu, Sabaot Land Defence Force (SLDF), Mombasa Republican Council (MRC)71 etc…
Inter-ethnic tensions, feuds, clashes….
Electoral violence – pre-electoral, electoral and post electoral…
66 …. 67 County and regional administration? No security; Hierarchy and chain of command under the 2010 Constitution and historically? Principal Secretary- [Review: for low key; next, incumbents:] 2012; August, December; 2013; 1969- Vice President; 2008, President vis-a-vis Prime Minister in the Grand Coalition=National Accord and Reconciliation Act (NARA); Standard (2014) “State rebrands Provincial Administration,” Nairobi, 19/5/2014 at https://www.standardmedia.co.ke/article/2000121578/state-rebrands-provincial-administration (accessed April 4, 2020); Patrick Lang’at (2015)”Only titles changed in provincial system,” Daily Nation, Nairobi, 27/8/2015, at https://www.nation.co.ke/news/Constitution-Provincial-Commissioners-Governors/1056-2849094- bjd894/index.html (accessed April 3, 2020).See also, the Building Bridges Initiative Report (October 2019), Section 186(G), “Professionalise and better regulate private security companies and guards to deliver better service that is more integrated with State security and adheres to higher standards.” ``68 The National Youth Service (NYS) cadets have been deployed together with the Kenya police and Administration Police (AP) to help in tracing “all contacts of persons who have tested positive for coronavirus.” See Dr Mercy Korir (2020) “Police pounce on man in quarantine swoop, four weeks too late,” Sunday Standard, Nairobi, 5/4/2020, at https://www.standardmedia.co.ke/article/2001366898/police-pounce-on-man-in-quarantine- swoop-four-weeks-too-late (accessed April 6, 2020). 69 Kennedy Kimanthi (2018) “Counties yet to take charge of forest roles,” Daily Nation, Nairobi, 3/5/2018 at https://www.nation.co.ke/news/Counties-yet-to-take-charge-of-forest-roles/1056-4541812-m9ext4/index.html (accessed April 1, 2020). It is established under section 7 of the Forest Conservation and Management Act, No 34 of 2016; Forest Act, 2005. 70 Private Security Regulation Act, 2016; Private Security (general) Regulations Act 2019. See also Robert Ndege (2020) “Resolve private security impasse,” Daily Nation, Nairobi, 28/1/2020, at https://www.nation.co.ke/news/oped-opinion/Resolve-private-security-impasse/440808-5435146- cqpe4gz/index.html (accessed April 1, 2020); Martin K Nkaari (2019) “New Regulations will help private security firms do better job,” Daily Nation, Nairobi, 18/7/2019, at https://www.nation.co.ke/news/oped-opinion/Law-doesn- t-give-private-guards-guns/440808-5201658-w8onidz/index.html (accessed April 1, 2020).... 71 Complex nature of its origin and operations. The MRC wanted the Coast region to secede from being part of ‘Kenyan territory.’ The National Government then banned its operations in 2008. However, the High Court in Mombasa ‘unbanned’ MRC for lack of sufficient evidence to support the allegations that they participated in criminal activities. See BBC (2012) “Mombasa secessionist group unbanned by Kenyan court,” Africa, 26/7/2012, at https://www.bbc.co.uk/news/world-africa-18996621 (accessed April 3, 2020). 15
Money laundering…..72
Human trafficking, smuggling, and child trafficking….73
Intellectual property infringement, piracy, counterfeiting...
Drug trafficking….74
Territorial invasion: Al-Shabaab, Merille bandits’ invasion and other militia…
Private security firms; security in institutions, homes, etc.
Resolving historical assassinations; preventing and solving continuing assassinations and mysterious deaths…
Extrajudicial killings75…
Use of excessive force by the police “service” (force) during demonstrations, riots and protests76
72 Brian Ngugi (2019) “US puts Kenya on list of cash laundering hotspots,” Business Daily, Nairobi, 1/4/2019, at https://www.businessdailyafrica.com/news/US-puts-Kenya-on-list-of-cash-laundering/539546-5050904- jwwmva/index.html (accessed April 7, 2020). This is partly due to the insufficiency of legal regulations on financial fraud. The DCI recommended the prosecution of 20 senior pblic officials alleged to have laundered money from the proceeds of the National Youth Service (NYS) corruption cases and saga, of about KES 1 billion. See Brian Wasuna (2019) “20 Kenya bank officials face charges for laundering in NYS scam,” East African, 8/2/2019, at https://www.theeastafrican.co.ke/business/How-five-banks-in-Kenya-cleaned-dirty-money/2560-4972366- ugw0ef/index.html (accessed April 6, 2020). 73 Due credit to the Directorate of Criminal Investigations Transnational Organised Crimes (TOCU) reportedly rescued three (3) Burundian women from a house in Kasarani, Nairobi, on March 6, 2020. TOCU also rescued 22 Ethiopians along Thika Road. See Cyrus Ombati (2019) “22 Ethiopians intercepted on Thika Road for being in Kenya illegally,” Standard, Nairobi, 17/5/2019, at https://www.standardmedia.co.ke/article/2001325840/22- ethiopians-held-in-city-operation-over-human-trafficking (accessed April 6, 2020); Daily Nation (2020) “11 Kenyans rescued in human trafficking raid, 2 foreigners arrested,” Nairobi, 23/2/2020, at https://www.nation.co.ke/counties/nairobi/11-Kenyans-rescued-in-human-trafficking-raid/1954174-5466402- ebwwdlz/index.html (accessed April 6, 2020). 74 Kenya, Uganda and Tanzania have been identified as the drug trafficking hotspots in the East African region. See Allan Olingo (2020) “Drug lords on global spies radar set up East Africa’s hub in Dar, US agency says,” The East African, 8/3/2020, at https://www.theeastafrican.co.ke/news/ea/US-agency-labels-tanzania-east-africa-drugs- trafficking-hub/4552908-5482476-ssbpvl/index.html ((accessed April 4, 2020). 75 Zadock Angira (2020) “Ipoa says rogue cops to blame for rise in extra-judicial killings,” People Daily, Nairobi, 28/3/2020 at https://www.pd.co.ke/news/national/ipoa-says-rogue-cops-to-blame-for-rise-in-extra-judicial-killings- 21386/amp/#aoh=15859252749341 (accessed April 4, 2020). 76 For instance, IPOA is still conducting investigations into the use of excessive force by police against Jomo Kenyatta University of Agriculture and Technology (JKUAT) students on November 11, 2019. See Gladys Burini (2019) “No way to justify police assault on student,” Daily Nation, Nairobi, 16/11/2019, at https://www.nation.co.ke/oped/opinion/No-way-to-justify-police-assault-on-student/440808-5350488- 15m8omjz/index.html (accessed April 6, 2020). A 17 year old Stephen Machirusi was also shot dead by police in Kasarani in 2019, during citizens’ protest over the poor state of roads in Mwiki area. See ibid.
16
Blatant human rights violations by police witnessed from the beginning of the curfew from 7 pm to 5 am (dusk to dawn) that began on March 27, 2020 to contain the spread of the novel Coronavirus 2019 (COVID-19) in Kenya by encouraging social distancing.77
Deterioration of public confidence and trust in the national security system especially due to extra judicial killings, assassinations, massacres, police brutality, role(s) of some security agencies like police and National Intelligence Service (NIS) in “political justice,” or the use of investigations, propaganda, arrest, detention to achieve personal and political goals.
[The foregoing discussions on security and CJS to come earlier to help conceptualize, problematize and contextualize security and criminal justice system in Kenya and Africa.]
15.7 Security and governance in customary and treaty transnational law Security and governance are a matter of national and sub-national78 concern, but also supra- national or regional, and international concern. The world is now a ‘global village’ in many ways thanks to the tremendous advancements in information and communication technologies (ICT). Further, states benefit greatly from each other through trade practices, exchange of services, tourism, among others. Therefore, the state of poor governance and insecurity in any one given country is a threat to world peace and security. As such, major international conventions and treaties have addressed the security situation and the governance issue as matters of human rights. The focus, as earlier stated, has been on the security of the person and property. Some of these conventions and treaties are discussed below:
15.7.1 United Nations Charter 1945 on security in Kenya and Africa Article 1(1) states that one of the purposes of the United Nations is to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice
77 Ibid at 7; Duncan Moore (2020) “Fury in Kenya over police brutality amid coronavirus curfew,” Al Jazeeera, Nairobi, 2/4/2020, at https://www.aljazeera.com/news/2020/04/fury-kenya-police-brutality-coronavirus-curfew- 200402125719150.html (accessed April 6, 2020). These incidence occured despite directive(s) of the World Health Organization (WHO) on the need for member states to ‘strike a balance between protecting health, minimizing economic and social disruption and respecting and protecting human rights’ as they seek to curb, control and mitigate the likelihood of adverse effects of the global COVID-19 pandemic. See World Health Organization (WHO) (2020) “WHO Director-General’s opening remarks at the media briefing on COVID-19,” March 11, 2020, at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid- 19---11-march-2020> (accessed on April 3, 2020). See also Chapter 8B on the Judiciary in Kenya and Africa. Ben Sihanya (2020) “IP and Innovation during COVID-19,” IL & SM. 78 Subnational units, agencies or instrumentalities include counties, sub-counties or wards in Kenya; provinces in South Africa, states in Nigeria and regions (mkoa in Swahili), districts ‘wilaya,’divisions ‘tarafa,’ and local wards ‘vitongoji,’ in Tanzania…. 17
and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. This entails ensuring there is peace in all countries (Kenya included) at all times and taking necessary steps to restore peace and security where there is a lapse. This is probably why members of the international diplomatic community (like former UN Secretary General Kofi Annan) were involved in the restoration of peace in the country after the post-election violence in 2007/2008.
15.7.2 Universal Declaration of Human Rights 1948 on security in Kenya and Africa Article 3 of the Universal Declaration of Human Rights (UDHR) declares that everyone has the right to life, liberty and security of person. This Article imposes an obligation on all states to ensure that they guarantee security of the person. The issue of security of property is addressed by Article 17 of the Universal Declaration of Human Rights (UDHR). Article 17 of the Universal Declaration of Human Rights (UDHR) provides that everyone has the right to own property alone as well as in association with others and that no one shall be arbitrarily deprived of his property. During the 2007/08 post-election violence (PEV), thousands of Kenyans were deprived of their right to property and displaced from their homes due to state-instigated tribal violence that arose after the fraudulent 2007-08 General elections. Since then, many people are yet to get their land back though some have been compensated.79
15.7.3 International covenant on civil and political Rights 1966 on life, security, elections, electoral justice... The International Covenant on Civil and Political Rights (ICCPR) 1966 has important provisions on security in terms of life, security, electoral justice, and the right to vote. These include Article 2(3) and Article 6(1) ICCPR 1966 among others. Article 2(3) of the ICCPR provides the guarantee for a remedy where human rights of any individuals are violated.
79 President Uhuru Kenyatta launched a KES 10 Billion compensation fund for victims of the 2007/8 post election violence, in March 2015 and with a lot of publicity. This was not realized even five years later due to non-approval of regulations, delays in disbursements and lack of comprehensive data on legitimate IDPs. The government even bought a 450-hectare piece of land in Njoro to settle around 2000 victims of PEV. See AFP (2017) “10 years on, no solace for 2007-08 poll violence survivors,” Daily Nation, Nairobi, 4/8/2017, at https://www.nation.co.ke/news/IDPS-in-Kenya-2007-2008-violence/1056-4044426-f2mnry/index.html (accessed April 6, 2020). In 2015, through Devolution Cabinet Secretary, Anne Waiguru, the Government claimed that it had compensated “all” IDPs and that it would compensate no more. See Maureen Murimi (2015) “Compensation over for poll victims- Gov’t,” Citizen Digital¸ 29/8/2015, at https://citizentv.co.ke/news/compensation-over-for-poll- victims-govt-99323/ (accessed April 6, 2020). IDPs from one-and-a-half tribes were compensated under Kibaki and Kenyatta…. 18
Article 6(1) of ICCPR provides that every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.80
There are challenges in implementing the right to life and security under ICCPR in Kenya and Africa.
15.7.3.1 The right to security and right to life in Kenya and Africa The right to security is closely connected to the right to life. The security of a person greatly determines whether that person will enjoy his right to life. Article 6(1) of the International Convention on Civil and Political Rights (ICCPR) provides that every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. During election related feuds, there is gross violation of this right. About 3000 lives were taken during the 2007 post-election violence. The Government of the day did not do much to punish the culprits nor did the leaders at the time make formidable attempts to quell the violence (some even incited it). During and after the repeat 2017 General Elections, at least 101 Kenyans were killed. Some were raped while others’ property were damaged.81 Furthermore, according to Article 26(1) of the Constitution of Kenya 2010, every person has the right to life. Sub-article 2 further elaborates that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or any other written law. The global coronavirus pandemic caused a health crisis in numerous African states. In Kenya, security forces were deployed to implement the 7 pm to 5 am coronavirus curfew, in a bid to curb the spread of Covid-19. However, in implementing this mandate, the police service propagated various human rights violations including the use of excessive force, whipping, some Kenyans have even lost their lives as a result of police brutality.82
Relatedly, there were debates in April 2021 over alleged police involvement in crime. This was after the airing of a documentary on Citizen TV entitled “Guns Galore” which depicted that Kenyans could hire a gun for as low as KES 1000 from police officers. 83
80 …. 81 See Kenya National Commission on Human Rights (KNCHR) 2018 report on 2018 on the ‘State of Human rights and Fundamental freedoms in the Republic of Kenya: Statement by the Kenya National Commission on Human Rights, 19/3/2018, at https://www.knchr.org/Portals/0/Statements/2018%20KNCHR%20STATEMENT%20ON%20THE%20STATE%20 OF%20HUMAN%20RIGHTS%20AND%20FUNDAMENTAL%20FREEDOMS%20STATEMENT.pdf?ver=2018 -05-15-123616-490 (accessed April 6, 2020) 82 Ibid, at 7. See also Chapter 10 of CODRALKA 1 above. 83 International Commission of Jurists (ICJ) “Guns Galore: Alarm over criminality within the security sector,” April 20, 2021, at https://icj-kenya.org/news/guns-galore-alarm-over-criminality-within-the-security-sector/ (accessed May 1, 2021). 19
15.7.3.2 The right to security and socio-economic rights in Kenya and Africa Article 25 International Convention on Civil and Political Rights (ICCPR) provides that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. The Constitution of Kenya 2010 also outlines socio-economic rights under Article 43. Socio- economic rights are also known as second (2nd) generation rights. These rights include the right to accessible and adequate housing, the right to clean and safe water, social security, emergency medical treatment, to be free from hunger, and to have adequate food, and the right to an education, the right to the highest attainable health which includes the right to health care services, including reproductive health. The state has a duty to provide for and enable access to these rights only in so far as its resources allow.8485 However, the implementation of this constitutional provision is very problematic, as has been witnessed in other jurisdictions such as South Africa, where, for example, litigation on the right to health has exposed the limitations of Government in promoting socio-economic rights.86
15.7.3.3 The Right to Vote under the International Convention on Civil and Political Rights 1966 Constitutional governance involves ensuring that the right to vote is accorded to those who are deserving. Article 25 of the ICCPR provides that every citizen shall have the right and the opportunity, without unreasonable restrictions: to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; to have access, on general terms of equality, to public service in his country. Kenyan citizens in the Diaspora should be able to vote in free, fair transport accurate and verifiable elections under Article 3,87 38,88 81,89 and 8690 of the Constitution.
84 The Kenya National Commission on Human Rights (discuss name change) recommended that Kenya withdraws its reservation on Article 14(2)(c) of the Maputo Protocol which vouches for the reproductive rights of women, especially medical abortion. 85 This can be read within the context of the fears expressed in the Kenya Economic Survey 2018, around the rising costs of the actualization of the Universal Health coverage in Kenya and expenditure on public health. See also Elizabeth Merab & Angela Oketch (2018) “Affordable health: Saving Kenyans from high costs,” Daily Nation, Nairobi, 17/7/2018, at https://www.nation.co.ke/health/Affordable-health-saving-Kenyans-from-high- costs/3476990-4666980-mp9ayw/index.html (accessed April 6, 2020). 86 …. 20
Many citizens aren’t registered voters because acquiring the prerequisite National ID can be difficult and many more aren’t properly educated on how to register and the importance, especially in rural areas.
15.7.4 African Union Charter on Security in Kenya and Africa Article 4 of the African [Banjul] Charter on Human and Peoples' Rights Human 1981 states that beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. It goes without saying that this right was grossly violated during the 2007/08 post-election violence, during and after the 2017 General Elections91, and even during the implementation of the coronavirus curfew92 in Kenya…
15.7.6 Organization of African Union Declaration on the Principles Governing Democratic Elections in Africa, 2002 in Kenya and Africa The African Union (AU) formulated Principles Governing Democratic Elections in Africa. These principles spell out the principles of democratic elections, the responsibilities of member states, election rights and obligations. Governments of member States commit themselves to implement the following ten (10) measures (Part III of declaration):93
87 …Constitution of Kenya, 2010. It states, “(1) every person has an obligation to respect, uphold and defend this Constitution. (2) Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.” 88 …Constitution of Kenya, 2010. It states, “(1) every citizen is free to make political choices, which includes the right— (a) to form, or participate in forming, a political party; (b) to participate in the activities of, or recruit members for, a political party; or (c) to campaign for a political party or cause. (2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for— (a) any elective public body or office established under this Constitution; or (b) any office of any political party of which the citizen is a member. (3) Every adult citizen has the right, without unreasonable restrictions— (a) to be registered as a voter; (b) to vote by secret ballot in any election or referendum; and (c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.” 89 …Constitution of Kenya, 2010. It states that “the electoral system shall comply with the following principles–– (a) freedom of citizens to exercise their political rights under Article 38…” 90 …Constitution of Kenya, 2010. It states, “at every election, the Independent Electoral and Boundaries Commission shall ensure that— (a) whatever voting method is used, the system is simple, (b) the votes cast are counted, tabulated and the results accurate, verifiable, secure, accountable and transparent; announced promptly by the presiding officer at each polling station; (c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and (d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.” 91 Ibid. 92 ibid. 93 To integrate constitutional law and political economy and edit the following…. 21
i. take necessary measures to ensure the scrupulous implementation of the above principles of democratic elections spelt out by the Organization of African Union (OAU). ii. establish where none exist, appropriate institutions where issues such as codes of conduct, citizenship, residency, age requirements for eligible voters, compilation of voters' registers, etc. would be addressed. iii. establish impartial, all-inclusive, competent and accountable national electoral bodies staffed by qualified personnel, as well as competent legal entities including effective constitutional courts to arbitrate in the event of disputes arising from the conduct of elections. iv. safeguard the human and civil liberties of all citizens including the freedom of movement, assembly, association, expression, and campaigning as well as access to the media on the part of all stakeholders, during electoral processes. v. promote civic and voters' education on the democratic principles and values in close cooperation with the civil society groups and other relevant stakeholders. vi. take all necessary measures and precautions to prevent the perpetration of fraud, rigging or any other illegal practices throughout the whole electoral process, in order to maintain peace and security.94 vii. ensure the availability of adequate logistics and resources for carrying out democratic elections, as well as ensure that adequate provision of funding for all registered political parties to enable them organize their work, including participation in electoral process. viii. ensure that adequate security is provided to all parties participating in elections. ix. ensure the transparency and integrity of the entire electoral process by facilitating the deployment of representatives of political parties and individual candidates at polling and counting stations and by accrediting national and/other observers/monitors. x. encourage the participation of African women in all aspects of the electoral process in accordance with the national laws.95 Under Rights and Obligations, provision 9 states that no individual or political party shall engage in any act that may lead to violence or deprive others of their constitutional rights and freedoms. Hence all stakeholders should refrain from, among others, using abusive language and/or incitement to hate or defamatory allegations and provocative language. These acts should be sanctioned by designated electoral authorities.
94 Arts. 1, 10, 35, 81, 86, 138, 140….of the Constitution of Kenya 2010. Chapters 26, 27, 31… of CODRALKA 1; Chapters…..of CODRALKA 2….; African Union instruments on elections, governance, unconstitutional change of Government…. 95 Cf. Arts. 1, 10, 35, 81(b), 100….of the Constitution of Kenya 2010; In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012]eKLR, Advisory Opinion Application No. 2 of 2012. 22
15.7.5 Peace, Security and Justice under the African Charter on Democracy, Elections and Governance in Kenya and Africa Article 8 of the African Charter on Democracy, Elections and Governance calls upon State Parties to eliminate all forms of discrimination, especially those based on political opinion, gender, ethnic, religious and racial grounds as well as any other form of intolerance. Article 11 of the same Charter provides that the State Parties shall undertake to develop the necessary legislative and policy frameworks to establish and strengthen a culture of democracy and peace. Kenya needs to ensure that the governance of elections is compliant with Chapter 5 of the African Charter on Democracy, Elections and Governance on “the Culture of Democracy and Peace.” Article 11 instructs the State Parties undertake to develop the necessary legislative and policy frameworks to establish and strengthen a culture of democracy and peace whereas Article 12 obligates State Parties to undertake to implement programmes and carry out activities designed to promote democratic principles and practices as well as consolidate a culture of democracy and peace. It further recommends that to this end, State Parties shall do the following four (4):96 a. Promote good governance by ensuring transparent and accountable administration. b. Strengthen political institutions to entrench a culture of democracy and peace. c. Create conducive conditions for civil society organizations to exist and operate within the law. d. Integrate civic education in their educational curricula and develop appropriate programmes and activities. Lastly, Article 13 requires that State Parties take measures to ensure and maintain political and social dialogue, as well as public trust and transparency between political leaders and the people, in order to consolidate democracy and peace.97 15.8 Security and Governance in Kenya under the 2010 Constitution….. [To restructure]… As already discussed, the Constitution 2010 guarantees the right to freedom and security of all Kenyans under Article 29.
15.8.1 Conceptualizing Security under the Constitution of Kenya 2010…. [To restructure] This is entrenched under Article 29 as quoted above. The provision protects citizens from being subjected to any form of violence from either public or private sources. The state and its organs in charge of security are thus bestowed with the duty to ensure that Kenyans enjoy this right to
96 [To cite and constitutional law and political economy….] 97 …. 23
freedom and security. They are to ensure that the people are protected from insecurity emanating from any quarter be it public or private. These include security in terms of life, safety, health, food and elections.
As earlier stated, security has become an issue of major concern in Kenya’s presidential elections. Policies and measures need to be enforced to remedy this situation in line with the Constitution.
Article 238 of the Constitution of Kenya 2010 provides that 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 resources. The National Security organs as per Article 239 are the Kenya Defence Forces (KDF), the National Intelligence Service (NIS) and the National Police Service (NPS).
How can these organs guarantee security in presidential elections? The Kenya National Commission on Human Rights (KNCHR) in its 2017 Party Nomination Report noted that security agencies including the National Police Service play a huge role in election management. These roles range from “securing polling stations, ballot materials and managing the polling queues.”98
The 2010 Constitution elevates governance in Article 10 which outlines national values and principles of governance. These include good governance, human rights, the rule of law, participation of the people, among others.
15.9 History, Present and future of Afro-Kenyan Security and Criminal Justice System: Administration and Regulation since Independence and Beyond What are the defining conceptual, policy and pragmatic frameworks of the fifth Kenyan Presidents with regard to security and criminal justice?
How have the Government and presidential administrations performed their functions in preventing and managing crime, violence and terrorism as well as administering criminal justice in Kenya since independence in 1963? What are the key features of the following five (5) post- independence developments?
First, under Jomo Kenyatta (K1)? Second, under Daniel Arap Moi? Third, under Mwai Kibaki? Transition from Kibaki and Grand Coalition Government. Fourth, under Uhuru Kenyatta (K2).
98 Kenya National Commission on Human Rights (2017) “The Fallacious Vote: A Human Rights Account of the 2017 Political Parties Primaries,” KNCHR, May 2017, at http://www.knchr.org/Portals/0/OccasionalReports/Party%20Nominations%20%20Report%20- %20KNCHR.pdf?ver=2017-05-15-110816-540 (accessed April 6, 2020). 24
Fifth, upon full and faithful implementation of 2010 Constitution and in the context of the BBI constitutional reforms 2020. In the context of constitutional implementation, reform and implementation (IRI)99 under the proposed constitutional reforms post 2017? In the context of the proposals of the Building Bridges Initiative (BBI) 2019 and 2020 Reports, proposals, and the debates therein, including the Constitution of Kenya (Amendment) Bill 2020?100
15.10 National Security Organs in Kenya and Africa Articles 238 to 247 establish the principles and organs of national security. National security is a core function of the executive. It comprises internal security and defence (against external aggression). It is defined in Article 238 as 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.
15.10.1 National Security Council in Kenya Article 240 further provides for the establishment of a National Security Council (NSC) which is to exercise supervisory control over national security organs and perform any other functions prescribed by national legislation. The Council is to integrate domestic, foreign and military policies relating to national security in order to enable the national security organs to co-operate and function effectively; and assess and appraise the objectives, commitments and risks to the Republic in respect of actual and potential national security capabilities.
The Jubilee Government’s first National Security Council meeting was reportedly held on February 25, 2014, where the agenda of discussion was four pronged;101
1. Security situation in Kenya. 2. The conflict in South Sudan. 3. The deployment of additional troops in South Sudan. 4. The enhancement of security at the Jomo Kenyatta International Airport (JKIA) and other airports. The National Security Council Act, 2012 came into force upon the final announcement of the results of the first elections under the 2010 Constitution. The President is the Chair of the
99 My argument or thesis in CODRALKA 1, 2 & 3 is that change (including birth, life, taxes, and death) is the only constant in human life…. Hence there is the need for (constitutional) implementation, reform, and implementation. Implementation or reform is a false dichotomy…. 100 See the Constitution of Kenya (Amendment) Bill 2020, at http://parliament.go.ke/index.php/node/12916 (accessed December 18, 2020). 101 Press Release-First National Security Council Meeting, at http://www.president.go.ke/press-release-first-national- security-council-meeting/ (accessed June 23, 2014). 25
Council and other members include the Deputy President, the Cabinet Secretaries responsible for Defence, Foreign Affairs and Internal Security, the Attorney-General, the Chief of Kenya Defence Forces, the Director-General of the National Intelligence Service and the Inspector- General of the National Police Service.102
What is the role and composition of the National Security Advisory Committee? In 2016, President Uhuru Kenyatta through Executive Order No. 1 of 2016, restructured the Government where the Office of the President and that of the Deputy President would have direct control of the National Security Council (NSC) and the National Security Advisory Committee (NSAC).103 Generally, the NSAC “provides general guidance and direction in the employment of available resources and efforts.”104
What is its ethnic and gender composition? Does it meet constitutional standards on integration and public participation, etc? How has it addressed security concerns, for instance, Chief Justice David Maraga’s concerns about the intimidation of judicial officers especially after the nullification of the 2017 General elections. He called demonstration “savage” and mean to “intimidate the Judiciary105…106
Former Chief Justice Willy Mutunga himself claimed to have been intimidated by the Mungiki and even threatened with “dire consequences” if the courts barred presidential candidate Uhuru Kenyatta from contesting the March 2013 general election.107
Under Article 239, the national security organs are the Kenya Defence Forces (KDF), the National Intelligence Service (NIS), and the National Police Service (NPS). The Defence Forces consist of the Kenya Army, the Kenya Air Force, and the Kenya Navy.108
102 Article 240 read with Article 131(on presidential authority), Constitution of Kenya 2010; National Security Council Act; National Cohesion and Integration Commission (NCIC). 103 Ouma Wanzala (2016) “Kiunjuri takes over multi-billion authorities as Uhuru reorganises State departments,” Daily Nation, Nairobi, 24/5/2016, at https://www.nation.co.ke/news/Uhuru-reorganises-State-departments/1056- 3217618-15bxoi9z/index.html (accessed April 6, 2020). 104 See the Defence White Paper (2017) at http://www.mod.go.ke/wp-content/uploads/2017/05/DP-white-paper.pdf (accessed April 6, 2020). 105 BBC News (2017) “David Maraga hits back at 'threats' over Kenya election re-run,” Africa, 19/9/2017, at https://www.bbc.com/news/world-africa-41322927 (accessed April 7, 2020). 106 National Security Council (NSC) Act, 2012; National Cohesion and Integration Commission (NCIC)? 107 BBC Africa (2013) “Kenya's Willy Mutunga ‘threatened’ over Kenyatta case, at http://www.bbc.com/news/world-africa-21519868 (accessed on July 4, 2016). Was this a hoax to justify the Supreme Court’s facilitating, abetting or caving in to presidential electoral fraud in the subsequent presidential election petition? 108 Article 241(2) Constitution of Kenya, 2010 states that, “the Defence Forces consist of—(a) the Kenya Army; (b) the Kenya Air Force; and (c) the Kenya Navy.” 26
15.10.2 National Police Service in Kenya and Africa…. [to address South Africa, Nigeria, Tanzania, Ghana,….] Internal security in Kenya is managed by machinery comprising of the Kenya Police, and the Administration Police. These agencies function under the charge of the Minister of Interior and Coordination of National Government.109 A National Intelligence Service (NIS) established under Article 242 of the Constitution of Kenya 2010 also exists. It has the responsibility for security and intelligence to enhance national security in accordance with the Constitution 2010. The Kenya Police was created under the Police Act, Cap 84 (repealed).110 Under section 108 of the 1969 Constitution, the President appointed and removed the Commissioner of Police, while other subordinate officers in the police service were appointed by the Public Service Commission and the Commissioner of Police. Under the Police Force has been the General Service Unit, a Para-military unit of the police force (now service).111
Article 243 establishes a National Police Service (NPS) consisting of the Kenya Police Service and the Administration Police. The National Police Service is be headed by an Inspector General appointed by the President with the approval or Parliament.112 Article 245(4) gives the Cabinet Secretary responsible for police services the authority to give direction to the Inspector-General with respect to any matter of policy for the NPS. The Inspector General, his two deputies as well as 6 other presidential appointees meeting the requisite criteria are to compose the National Police Service Commission (Article 246 (2)).
The Commission is to recruit and appoint persons to hold or act in offices in the Service, confirm appointments, and determine promotions and transfers within the National Police Service. The Commission also exercises disciplinary control over and removes persons holding or acting in offices within the Service as well as any other functions prescribed by national legislation. Cf. Sections 10 and 11 of the National Police Service Commission Act, 2011.
The Administration Police was created under the Administration Police Act. The President appoints the Administration Police (AP) Commandant, while the Administration Police (Aps) are appointed by District Commissioners. The Administration Police force works within the framework of the Provincial Administration. These have changed under the Constitution and the National Police Service Commission (NPSC) Act 2011.113114
109 See the “Presidency” website, at http://www.presidency.go.ke/index.php/2013-12-18-15-53-46/presidency/12- the-team/229-the-ministry-of-interior-and-coordination-of-national-government (accessed on June 23, 2014). 110 The Act and the Force standing orders were largely inconsistent with the Constitution of Kenya 1969 and 2010. The Act was superseded by the Kenya National Police Service Commission Act, 2011 and the National Police Service Act, 2011. 111 Philip Ochieng & Joseph Karimi (1980) The Kenyatta Succession. Transafrica Publishers, Nairobi (aspects of this have been disowned by the authors as part of the Kenyatta- Njonjo- Moi intrigues). 112 In December 2012, Mr David Kimaiyo was sworn in as Kenya’s first Inspector-General. 113 Cf. Okoa Kenya proposal to place the Administration Police (AP) under counties and governors to chair the County Security Councils…. 27
The Administration Police have been named in the recent chilling killing of human rights lawyer Willie Kimani, his client Josephat Mwenda and Taxi driver Joseph Muiruri. The three APs accused of the murder are Senior Sergeant Fredrick Leliman, Corporal Stephen Chebulet and Police Constable Silvia Wanjiku. Clearly, there still seems to be an ominous ring of impunity in the police forces as police death squads are involved in extrajudicial killings and get shielded from the law.115
15.10.3 National Intelligence Service in Kenya and Africa….. [to address South Africa, Nigeria, Uganda, Tanzania, Ghana] The National Intelligence Service (NIS) is responsible for security intelligence and counter intelligence to enhance national security in accordance with the Constitution.116 It is established under Article 242 of the Constitution and the National Intelligence Service Act. The National Security Intelligence Service (NIS) used to be referred to as special branch, then directorate of security intelligence, and now as the National Security Intelligence Service (NSIS).
There are fifteen (15) functions of the National Intelligence Service listed under section 5 of the National Intelligence Service Act, 2012. They include the following six (6):
First, to gather, collect, analyse and transmit or share with the relevant State agencies, security intelligence and counter intelligence.
Second, detect and identify threats or potential threats to national security.
Third, advise the President and Government of any threat or potential threat to national security.
Fourth, safeguard and promote national security and national interests within and outside Kenya.
Fifth, gather, evaluate and transmit departmental intelligence at the request of any State department or organ, agency or public entity.
Clause 24 introduces the County Security Advisory Council to strengthen community involvement in matters of security. 114 Section 27 of the National Police Service Act 2011 states, “The functions of the Administration Police Service shall be the— (a) provision of assistance to the public when in need; (b) maintenance of law and order; (c) preservation of peace; (d) protection of life and property; (e) provision of border patrol and border security; (f) provision of specialized stock theft prevention services; (g) protection of Government property, vital installations and strategic points as may be directed by the Inspector-General; (h) rendering of support to Government agencies in the enforcement of administrative functions and the exercise of lawful duties; (i) co-ordinating with complementing Government agencies in conflict management and peace building; (j) apprehension of offenders; (k) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.” 115 Cyrus Ombati (2016) “IG Boinnet names three Administration Police officers linked to murder of Nairobi lawyer Willie Kimani and two others,” Standard, Nairobi, July 2, 2016, at http://www.standardmedia.co.ke/article/2000207331/ig-boinnet-names-three-administration-police-officers-linked- to-murder-of-nairobi-lawyer-willie-kimani-and-two-others (accessed on July 4, 2016)…. 116 Section 5 of the National Intelligence Service Act, No 28 of 2012. 28
Sixth regulate, in co-operation with any State department or agency, the flow of security intelligence between the Service and that State department or agency.
The former Inspector General Joseph Boinnet is reputed to have made National Intelligence Service (NIS) professional.117
The BBI Reports 2019 and 2020, and the Constitution of Kenya (Amendment) Bill 2020 recommended that the NIS plays a key role in vetting applicants for public office, to ensure due diligence and background checks.118 How best should this be implemented to avoid the two extremes: First, corrupt, lawless and unethical individual being employed in public service without (sufficient) background checks or vetting? Second, security or intelligence being used or abused by some interest groups to harass or intimidate rivals and opponents in the employment or vetting process?
15.10.4 Kenya Defence Forces deployment [to address South Africa, Nigeria, Uganda, Tanzania, Ghana]119 The Kenya Defence Forces are responsible for the defence and protection of the sovereignty and territorial integrity of the Republic; assist and cooperate with other authorities in situations of emergency or disaster, and report to the National Assembly whenever deployed in such circumstances.120
The Kenya Defence Forces may also be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly e.g. in the case of Westgate Shopping Mall attack in 2013, the Baragoi valley raid in 2012,121 Mpeketoni attacks in 2014, Garissa University College, Kapedo and Nadome massacres.122 Article 241(5) & (7)
117 Kamore Maina (2019) “Boinnett term as IG comes to an end today,” Star, March 11, 2019, at https://www.the- star.co.ke/news/2019-03-11-boinett-term-as-ig-comes-to-an-end-today/ (accessed May 1, 2021). 118 Cyrus Ombati (2020) “NIS to lead in war against cartel capture in public service- BBI,” Standard, Nairobi, October 26, 2020, at https://www.standardmedia.co.ke/nairobi/article/2001391481/nis-handed-big-broom-to-clean- public-service (accessed December 18, 2020). 119 ……[To cross refence to KDF discussion under Kenyatta 1, Moi, Kibaki, Kenyatta 2…. And post-Kenyatta 2 Kenya above; and variety of authorities]…. 120 See Article 241(3) of the Constitution and section 8 of the Kenya Defence Forces Act, No. 5 of 2012. 121 During a police operation in Suguta Valley in Baragoi, 42 police officers were killed. This was blamed on both internal and external flaws in our national security system. See The Standard (2012) “The time bomb that was Baragoi massacre,” Nairobi, 31/12/2012, at https://www.standardmedia.co.ke/?articleID=2000073982&story_title=Kenya-The-time-bomb-that-was-Baragoi- massacre (accessed April 3, 2020). 122 In November and December 2012, for example, the Kenya Defence Forces (KDF)s was deployed in Suguta Valley to deal with internal unrest in the area. How successful was it? Debate on KDF v. police deployment in Westgate Mall attack in September 2013. The Mpeketoni attack in 2014 was blamed on the opposition politicians as Al-Shabaab terror group claimed responsibility. Slow response to the Garissa University College attack due to unavailability of a military chopper to fly the Recce Squad to the area. State neglect of Nadome residents- slow response after raider attacks. Killing of 21 police officers in Kapedo – Kenya Defence Forces was deployed in all these crises. 29
further provide for a Defence Council which is to be responsible for the overall policy, control, and supervision of the Kenya Defence Forces and perform any other functions prescribed by national legislation.
The Kenya Defence Forces has also played a role in infrastructure development, management, and implementation of public projects. President Kenyatta remarked this role in September 2020 when he stated that:
“We also recognise the contribution that our Defense Forces continue to make to our country as a whole, especially in utilising their skills and assets to spearhead selected strategic development projects.123
“The rehabilitation works on the Nairobi to Nanyuki meter-gauge railway line, the work done by Navy engineers in the rehabilitation of the Kisumu Port, and the ongoing work on Nakuru to Kisumu line; are a few of such projects the Defence Forces have executed with excellence. For this reason, we are, indeed, proud of your contribution to the realisation of the Vision 2030 journey.”124 However, some of these roles have been debated in the context of the militarization of Nairobi City County by the Nairobi Metropolitan Service (NMS).125
15.10.5 Operationalizing the National Security Organs in Kenya, 2011-2012126 The emergence and endurance (?) of (tribal) gangs, vigilantes and militia; mungiki, sungu sungu, Sabaot Land Defence Force (SLDF), Mombasa Republican Council (MRC) etc. Violence sponsored or suffered by the state?127
In early September 2012 after intrigues (or fitina) and a long delay, President Mwai Kibaki nominated a Chair and five (5) members to the National Police Service Commission (NPSC) in consultation with Prime Minister Raila Odinga. He then appointed them in a Gazette notice issued on Friday September 28, 2012 following the approval by Parliament. The following were the appointees: educationist Mr Johnstone Kavuludi as the Commission Chairman. The members
123 PSCU (2020) “President Uhuru commends KDF for role in infrastructure development,” Standard, Nairobi, September 24, 2020, at https://www.standardmedia.co.ke/rift-valley/article/2001387608/president-uhuru- commends-kdf-for-role-in-infrastructure-development (accessed 18/12/2020) 124 Ibid. 125 Demas Kiprono (2020) “KDF's civilian roles are illegal and off-target,” Standard, Nairobi, October 2, 2020, at https://www.standardmedia.co.ke/commentary/article/2001388473/kdfs-civilian-roles-are-illegal-and-off-target (accessed 18/12/2020). 126 State violence, state terror? The bandit state? Mutahi Ngunyi; John Githongo (2015) “Africa (up)rising: Confronting the new authoritarianism,” Star, Nairobi, February 14, 2015, at http://www.the-star.co.ke/news/africa- uprising-confronting-new-authoritarianism (accessed 21/02/15). 127 Cf. historically. Ibid. 30
are Mr Ronald Musengi, Ms Esther Chui-Colombini, Mr Murshid Mohammed, Mr Muiu Mutia and Ms Mary Awuor.128
The next reform-related task was for the newly appointed commissioners to organize for the recruitment and appointment of an Inspector General to replace Police Commissioner Matthew Iteere whose term constitutionally expired on August 27, 2012.
The Commission sought to fill in the vacant posts of Inspector General and two deputies. The slots were advertised in the dailies on October 15, 2012. Applications were to be made by October 29, 2012. The interviews were commenced on Friday, November 9, 2012, with the Commission promising that the Inspector General of Police would be in office by December 2012. The Commission’s other priority was to recruit a new Director of Criminal Investigations (DCI) Director and hire about 7000 police officers.129
In early September 2012, just before the appointments were made, two people, Albert Mulindi and Samwel Ng’ang’a, through their lawyer John Khaminwa moved to the High Court seeking orders that the appointment of Inspector General of the Police be postponed until after the 2013 General Elections. They claimed the appointments would compromise state security because with only six months to elections, a new officer would not be placed to appreciate and handle the security challenges during a period of political volatility.130
Justice George Odunga heard the unsuccessful case. Commenting on the case, Former Imenti Central Member of Parliament (MP) Gitobu Imanyara claimed there was a hidden hand seeking to scuttle police reforms and the fight against impunity.131 The then president Mwai Kibaki, in consultation with then Prime Minister Raila Odinga, nominated Mr David Kimaiyo to the seat, who after the approval of Parliament, was sworn in on December, 24, 2012.132
As has been noted, elections remain a main trigger of violence and insecurity, and agencies or security agencies or forces (National Intelligence Service (NIS), regular police, administrative police, military) are expected to play a key role in electoral processes. In the light of the 2007,
128 Cyrus Ombati (2012) “Kibaki appoints Police Service Commission nominees,” Standard Digital, at http://www.standardmedia.co.ke/?articleID=2000067714&story_title=kibaki-appoints-police-service-commission- nominees (accessed 22/10/2012). 129 Benard Momanyi (2012) “Wanted: Inspector General of Kenya Police,” Captial FM News, at http://www.capitalfm.co.ke/news/2012/10/wanted-inspector-general-of-kenya-police/ (accessed 23/10/2012). 130 Lucianne Limo (2012) “Court to rule on police boss appointment” Standard Digital September 13, 2012, at http://www.standardmedia.co.ke/index.php/mag/sports/videos/?articleID=2000066063&story_title=Court-to-rule- on-police-boss-appointment (accessed 25/10/2012); Ben Sihanya (due 2020) “Constitutional implementation in Kenya, 2010-2015: Challenges and prospects,” CODRALKA 1, Chapter….revised from Sihanya’s research under FES Kenya Occassional Paper, No. 5, at http://library.fes.de/pdf-files/bueros/kenia/09857.pdf (accessed 17/4/2019). 131 Lucianne Limo (2012) “Court to rule on police boss appointment” Standard Digital September 13, 2012, ibid. 132 Mr David Kimaiyo resigned from office on December 2, 2014 after numerous national security breaches occurred under his tenure. He was replaced by Mr Joseph Boinnet who retired from the Inspector General’s office in 2019. He was succeeded by Mr Hillary Mutyambai. 31
2013 and 2017 General Elections, there is a continuing challenge on how to provide and organize security during electoral processes, and how to make sure that the involvement of the security forces does allow for free and fair elections.133
15.11 The President and National Security Organs in Kenya and Africa Under section 108 of the 1969 Constitution, the President appointed and removed the Commissioner of Police, while other subordinate officers in the police service were appointed by the Public Service Commission and the Commissioner of Police.
Defence in Kenya is organized under the Ministry of State for Defence. Under Article 131(c), the President is the Commander-in-Chief of the Kenya Defense Forces, and under section 4 of the 1969 Constitution, the President was the Commander-in-Chief of the Armed Forces. The machinery for defence comprises of the Department of Defence (DOD), which, like the police, is part of the Office of the President (OP).
All but senior military officers are appointed, promoted, and, if necessary, removed by the military's professional personnel system. The President appoints and retires senior military officers.134 The Minister of Defence presides over the National Defence Council (NDC). The Chief of General Staff heads Kenya’s Defence Headquarters.
15.12 War Emergency, Disaster, Peace: The President vis-à-vis the National Assembly in Kenya and Africa [to address South Africa, Nigeria, Uganda, Tanzania, Ghana] The National Assembly is charged with the power regarding the declaration of war or a state of emergency under section 85 of the 1969 Constitution.135 Arts 132(4) (e) and 96(6) of the Constitution 2010 give the President the authority to declare war with the approval of the National Assembly whereas Arts. 132(4)(d) and 58 empower the President to declare a state of emergency with the approval of the National Assembly.136 To compare War Power of Congress and the President in the United States of America.137
133 …. 134 Is the presidential function executive? administrative? Nominal, notional, peripheral? ceremonial? Or based on a (customarily) binding recommendation.....? what is the practice and tradition? Is it constitutional? Legal? Valid? Legitimate? How come the military high command since independence have tended to come from the President’s tribe or those that are personally loyal? Sycophantic soothsayers… 135 Cf. the Kriegler Report; the Ransley Report. Cf. Ojwang & Francheschi (2002) “Constitutional regulation of the foreign affairs power in Kenya,” Vol 46, Issue 1, Journal of African Law 43-58. 136 Article 162 states: Parliament shall establish Parliament courts with the status of the High Court to hear and determine disputes relating to— (a) employment and labour relations; and (b) the environment and the use and occupation of, and title to, land; KQ Case Report. Cf George Kegoro (2011) workshop paper on Judiciary for FES and UON’s Department of Political Science and public administration. 137 …. 32
What are the substantive constitutional, statutory, policy and administrative considerations that should be taken into account before deploying KDF in internal matters? What processes should be followed to deploy the KDF in internal matters? What are the constitutional, political social, financial, …..consequences of KDF deployment? How does deployment of the military militarize the civil service or society? How does it unconstitutionally politicize the military?138
15.13 Security for Very Important Persons and Very Very Important Persons in Kenya and Africa [to address South Africa, Nigeria, Uganda, Tanzania, Ghana139] Who are Very Important Persons (VIPs) and Very Very Important Persons (VVIPs) in Kenya? In Kenya, Members of Parliament, Cabinet Secretaries, Senators, Governors and other senior government officials are considered as VIPs.140 What is the order of precedence or pecking order?141 What are the VIP security issues?142 There is reorganization so that Administration Police (APs) are to provide security for select VIPs? Yes. What is the role of the (elite) Recce Squad? The National Police Service (NPS) in Kenya released a statement in January 2020, that it would not provide security to VIPs who are involved in or have been accused and/or charged with a crime, until they are cleared by the courts of law.143 This led to the withdrawal of the security details of Members of Parliament including Gatundu MP Moses Kuria (Jubilee), Malindi MP Aisha Jumwa (ODM) and Embakasi East MP Babu Owino (ODM).144 What constitutional, legal, political debates attended the claims of withdrawn security from the Jubilee Tanga Tanga politicians in 2019/20 period?145
138 To cross reference to discussion on KDF under K1, Moi, Kibaki, K2, and post-K2 Kenya…. 139 Cf presidential precedence is a constitutional issue in Ghana…. To cross reference….. 140 Omondi Onyatta (2019) “Private guards to take over bank and VIP security,” Star, Nairobi, 6/12/2019, at https://www.the-star.co.ke/news/2019-12-06-private-guards-to-take-over-bank-and-vip-security/ (accessed April 7, 2020) 141 Cf. discussion on the President and Deputy President in Kenya and Africa in Chapters 11 & 12 above. 142 Independent Policing Oversight Authority (IPOA) describes VIPs security as “…the irregular and unregulated deployment of police officers…where they become available only for a few in the wealthier segments of the society… [Consequently] security services become virtually non-existent for the poorer segments of society, where they are mostly needed. The absence of uniformed police officers for beat, patrol and crime management especially in rural areas and urban centres in turn become an incentive for criminals…leading to widespread insecurity.” Road users have been complaining of harassment, there is no legislation or legal framework on VIP protection in Kenya… 143 Vincent Achuka (2019) “No more police security for rogue VIPs,” Daily Nation, Nairobi, 20/1/2020, at https://www.nation.co.ke/news/politics/No-police-security-detail-rogue-VIPs/1064-5424776-sbsocfz/index.html (accessed April 7, 2020). 144 …. 145 Ibrahim Oruko (2019) “Panic as state withdraws bodyguards for team ‘tanga tanga’,” Nairobi News, Nairobi, April 13, 2020, at https://nairobinews.nation.co.ke/featured/panic-as-state-withdraws-bodyguards-for-team-tanga- tanga (accessed 18/8/2020). 33
Who have been providing security for VIPs? VVIPs? In the past years and regimes, Administration Police (APs) have been providing security for VIPs. It is part of the mandate of the National Police Service. However in 2019, Dr Matiang’i, Interior CS announced or declared that private guards may even be tasked with VIP protection of public officials.146 According to the Police Spokesperson Charles Owino, a resolution had been reached in September 2018 under a “transformative agenda” in the police service to have VIPs’ security drawn from Administration Police (AP) department only, and not from the General Service Unit (GSU) or regular police. He stated thus: “There was a resolution that protection services fall under Administration Police, in the past, security officers could be drawn from Administration Police, regular or General Service Unit (GSU), now the officers are supposed to be from AP in line with the transformative agenda”147 This was in the context and in response to claims by Jubilee MPs allied to the Deputy President William Ruto that their security had been withdrawn. The withdrawal of personal security from serving “opposition” politicians has been a regular practice.148
15.14 Security governance and County Administration under the Constitution of Kenya 2010 The role of county governments in security governance in Kenya has been a critical policy question since the inception of devolution. Kenya has experienced insecurity and attacks ranging from the attacks at Tana Delta river crisis, Kisumu, Suguta Valley, Garissa, Westgate Shopping Mall, Bungoma, Kitui, Moyale, Mpeketoni in Lamu County, Mandera, and Baringo.
This part advances three key arguments. First, the Constitution devolves executive powers including security. National (3) and County government, can perform this function through mutual cooperation and consultation as envisaged under Article 6 of the Constitution, 2010. Some legislation envisage security as a concurrent function. For instance, the National Police Service Act, 2011, provides for county policing.
Alternatively, we argue that county governance is inextricably intertwined with national security functions.
Indeed, the Constitution guarantees security as a human right. The failure by the Government to safeguard security is a violation of the freedom and security of the person under Article 29. The Constitution also restructures security administration. Security as a human right under Article 29
146 Ibid. 147 Roselyn Obala (2019) “State withdraws security detail of governor and MPs,” Sunday Standard, Nairobi, 14/4/2019, at https://www.standardmedia.co.ke/article/2001320877/state-withdraws-security-detail-of-governor- and-mps (accessed 17/4/2019). 148 What is its constitutionality? 34
is strengthened by imposing duties on the President as Head of State or Government Use either of the terms to show the extent of his powers), as Commander-in-Chief and as Chair of the National Security Council.
Duties are also imposed on the executive and the Government to ensure security. Just like the Magna Carta (Great Charter) 1215, the fact security of the person (including habeas corpus), public taxation is a foundation of human rights and security.149 The Constitution also fundamentally altered the security organs that existed under the 1969 Constitution.
The Kenya Police Service, Administration Police Service and the National Intelligence Service are responsible for internal security. So far, these agencies are operated as if they are only answerable to the President or National Government. These trends by Kenyatta are the cornerstone of the emerging constitutional (dis)order in Kenya. President Uhuru Kenyatta reversed constitutional gains made under the new constitutional order faster than his preceding biological, political and god fathers of Kenyatta I, Daniel Arap Moi and Mwai Kibaki. For instance, both Mr Joseph Boinnet and his predecessor Mr David Kimaiyo operated as if they should be taking orders from President Uhuru Kenyatta.
Mr Joseph Boinnet attempted to implement President Uhuru Kenyatta’s unconstitutional order that 10, 000 recruits report for training contrary to a court order.150 And following the attack at Mpeketoni in Lamu County, Mr Kimaiyo imposed a curfew and gave credence to President Uhuru Kenyatta’s partisan and tribal statements. President Uhuru Kenyatta had alleged that the attack in Lamu was politically motivated, ethnic violence against a Kenyan community (Kikuyu) and that it was not an Al-Shabaab terrorist attack.151 Then attacks of non-Kikuyu followed in Mombasa and elsewhere with no protection from an ethnicised security system.
The upshot is that county governments are denied authority on security, even on logistics and information sharing, partly due to the centralization of the security function. The refusal to consult, cooperate and coordinate with the county governments and security structure has contributed to ineffective response as was witnessed in the Garissa University College massacre.
Second, President Uhuru Kenyatta’s Government increasingly ignored key constitutional provisions on security. The Kenyatta Presidency sponsored the Security Laws (Amendment) Bill, 2014 which he promptly assented to. Significantly, High Court Judge, Justice George Odunga declared eight (8) sections of the Security Laws (Amendment) Act (SLAA)
149 See Martin Loughlin (2013) The British Constitution: A Very Short Introduction, OUP, Oxford…. I am grateful to Advocate, Senator Mutula Kilonzo Jr, Makueni County, who availed to me a copy of this book. 150 Ibid. 151 Catherine Wambua-Soi (2014) “Kenya Mpeketoni attack: Who is fooling who?” Al Jazeera, Africa, 23/7/2014, at https://www.aljazeera.com/blogs/africa/2014/06/99121.html (accessed April 3, 2020). 35
unconstitutional.152 The Court of Appeal substantially upheld Justice George Odunga’s decision.153
President Uhuru Kenyatta in a move to re-introduce the discredited provincial administration, assigned county commissioners new roles and made them answerable only to the President and the National Government.154 Progressives argue that this contravenes the Constitution and undermines the mandate and jurisdiction of the Officer Commanding Police Division (OCPD), the Governor, and the relevant County Executive Committees. This contravenes section 17 of the Sixth Schedule which requires the National Government (not the President alone) to restructure the provincial administration to respect the devolved system of governance within five (5) years after the effective date (my emphasis).
Third, the Government is adopting policy measures that undermine the constitutional design and intendment on security. Indeed President Uhuru Kenyatta (K+) is systematically reversing constitutional gains made under the Constitution as well as obstructing justice. President Uhuru Kenyatta aerially supervised the destruction of a ship which was to be used as evidence in the case of Republic v. Yousuf Yaqoob & 11 Others [2014]. Such actions exemplify presidential lawlessness and are a threat to constitutional democracy, the rule of law and security in Kenya. This is also an invitation to civil disobedience and even revolution or the breakdown of constitutional order.
The Uhuru Kenyatta Presidency also endangered constitutional democracy by disregarding civilian oversight of security agencies as required by the Constitution. For example, the President wears military uniform in public and has increasingly militarised the public service and internal security. Remarkably the Constitution subject security to civilian oversight. Civilian oversight is growing to be an important component of external police accountability in many constitutional democracies.
152 Daily Nation (2015) “Judge puts on ice eight sections of new security laws as CORD, Jubilee lock horns,” Nairobi, 2/1/2015, at https://www.nation.co.ke/news/politics/Secutiy-Laws-High-Court-George-Odunga/1064- 2576892-ce6it4z/index.html (accessed April 3, 2020). See Petition Nos 628 & 630 of 2014. Coalition for Reform and Democracy (CORD)& 2 Others v. Republic of Kenya & 10 Others [2015] eKLR.... 153 Paul Ogemba (2015) “Judges reject appeal in security laws case,” Daily Nation, Nairobi, 23/1/2015, at https://www.nation.co.ke/news/politics/Judges-reject-appeal-in-security-laws-case/1064-2600358- gt3vtwz/index.html (accessed April 3, 2020). 154 Mwangi wa Githinji and Frank Holmquist (2012) “Reform and political impunity in Kenya: Transparency without accountability,” Vol 55, No 1 African Studies Review, 53-74 at https://www.jstor.org/stable/41804128 (accessed April 3, 2020). See also Rawlings Otieno and Felix Olick (2014) “President Uhuru Kenyatta gives more powers to county commissioners,” The Standard, Nairobi, 16/5/2014 at https://www.standardmedia.co.ke/mobile/amp/article/2000121313/president-uhuru-kenyatta-gives-more-powers-to- county- commissioners#aoh=15859405041948&referrer=https%3A%2F%2Fwww.google.com&_tf=From&20%251%2 4s (accessed April 3, 2020). 36
In order to address these security challenges, Governors who are democratically elected are in a better position to handle security at the county level. This will help entrench the constitutional requirement that National and County governments should be inter-dependent and conduct their mutual relations on the basis of consultation and cooperation. Currently, the Governor’s role that relates to security is restricted to chairing the County Policing Authorities (CPAs) whose function is mainly oversight without any role in security administration. The County Policing Authorities (CPAs) are yet to be operationalized.
In conclusion, the Presidency and the National Government must therefore implement the Constitution and involve the county government in addressing security. The practice in India, Canada, US and Nigeria with devolved systems indicates that county and public participation will help improve security in Kenya. 15.15 Bills and Litigation on Police and Security “Reforms” in Kenya The Uhuru Kenyatta Government introduced two unpublicized amendment Bills whose effect of creating an Imperial Inspector-General (I-G) of Police would compromise checks and balances in the Police Force by concentrating power in the office of the Inspector-General (I-G). The Bills also bestowed upon the President powers to appoint the Inspector-General (I-G) without consultation of the National Police Service Commission (PSC) and the dismissal of the Inspector-General (I-G) will be at the recommendation of the relevant Cabinet Secretary (who is appointed by the President) rather than by the independent National Police Service Commission (NPSC).155 The National Police Service Act, 2011 requires that the National Police Service Commission conducts the procedure of appointing the Inspector General and submit the shortlisted names for nomination by the President.156 Furthermore, the Bill required the National Police Service Commission (NPSC) to seek the approval of the Cabinet Secretary for the appointment of its own staff and the disciplinary powers of the National Police Service Commission (NPSC) over the police will be reduced to making procedure, leaving the actual decision to the Inspector General (IG). The amendment Bills would also give the Cabinet Secretary authority to decide whether some Police Standing
155 Clause 86 of the Security Laws (Amendment) Bill, 2014 provides that, “Section 12 of the National Police Service Act is amended by-(a) deleting subsection (2) and substituting therefor the following subsection-(2) The President shall, within fourteen days after a vacancy occurs in the office of the Inspector-General, nominate a person for appointment as an Inspector-General and submit the name of the nominee to Parliament. (b) deleting subsections (3), (4), (5), and (6).” 156 Section 12 of the National Police Service Act, 2011, “(1) Pursuant to Article 245 (2) (a) of the Constitution, the Inspector-General of the Service shall be appointed by the President with the approval of Parliament. (2) The President shall, within fourteen days after a vacancy occurs in the office of the Inspector-General, nominate a person for appointment as an Inspector- General and submit the name of the nominee to Parliament….” 37
Orders should be declared “confidential” and not published. This would greatly compromise integrity.157
The proposed changes were viewed not only to compromise transparency, but they also put extensive power over the Police force in the hands of the President and his Cabinet. The amendments went against the letter and spirit of the 2010 Constitution.
On 8th December, 2014, the Security Laws (Amendment) Bill 2014 was published in a special issue of the Kenya Gazette.158 The following day the Bill was introduced for the first reading in the National Assembly. Pursuant to Standing Order No 120, the period for publication was reduced from 14 days to 1 day. The Bill was passed and assented to by the President on December 19th, 2014.
In a ruling delivered on 23rd February 2015, the High court sitting in Nairobi, declared eight sections of the Security Laws Amendment Act 2014 unconstitutional. The court issued the following eight orders.159
First, section 12 of the Security Laws (Amendment) Act and Section 66A of the Penal Code is hereby declared unconstitutional for violating the freedom of expression and the media guaranteed under Articles 33 and 34 of the Constitution.
Second, section 64 of Security Laws (Amendment) Act which introduced Sections 30A and 30F to the Prevention of Terrorism Act is hereby declared unconstitutional for violating the freedom of expression and the media guaranteed under Articles 33 and 34 of the Constitution.
Third, section 34 of the Security Laws (Amendment) Act is hereby declared unconstitutional in so far as it includes “telescopes” in Section 2 of the Firearms Act.
Fourth, section 16 of the Security Laws (Amendment) Act and Section 42A of Criminal Procedure Code are hereby declared unconstitutional as they violate the right of an accused person to be informed in advance of the evidence the prosecution intends to rely on as provided under Article 50(2) (j) of the Constitution.
Fifth, section 20 of the Security Laws (Amendment) Act which amended Section 364A of the Criminal Procedure Code is hereby declared unconstitutional for being in conflict with the right to be released on bond or bail on reasonable conditions as provided for under Article 49(1) (h) of the Constitution.
157 Yash Pal Ghai (2013) “From colonial police to democratic police- and back?” Star, Nairobi, August 31, 2013, at http://www.the-star.co.ke/news/article-134185/colonial-police-democratic-police-and-back (accessed 6/10/2013). 158 Kenya Gazette Supplement No. 163 National Assembly Bill No 309. 159 Coalition for Reform and Democracy (CORD) & 2 Others v. Republic of Kenya &10 Others [2015] eKLR. 38
Sixth, section 26 of the Security Laws (Amendment) Act which introduced Section 26A into the Evidence Act is hereby declared unconstitutional for violating the right of an accused person to remain silent during proceedings as guaranteed under Article 50(2) (i) of the Constitution of Kenya 2010.
Seventh, section 48 of the Security Laws (Amendment) Act which introduced Section 18A to the Refugee Act, 2006 is hereby declared unconstitutional for violating the principle of non- refoulment as recognized under the 1951 United Nations Convention on the Status of Refugees which is part of the laws of Kenya by dint of Article 2(5) and (6) of the Constitution.
Eighth, section 95 of the Security Laws (Amendment) Act which introduced Section 95A to the National Police Service Act, 2011 and created the National Police Service Board is hereby declared unconstitutional for violating Article 246(3) of the Constitution.
The Building Bridges Initiative (BBI) 2019 and 2020 Reports, proposals and debates, and the Constitution of Kenya (Amendment) Bill 2020 proposed several reforms to Chapter 14 (National Security). These include, to harmonize the functions of the Kenya Police and Administration Police, and to enhance the powers of the Inspector-General, to provide clarity on command of the National Police Service. Further, the Bill proposes to include the Director of Public Prosecutions (DPP) as a functionally and financially independent commission (Art. 248).
15.15.1 State of emergency, war and peace160 in Kenya and Africa What is a state of emergency? Disaster? War? Peace? What are the presidential powers and functions in s state of emergency? War? Peace? Can an acting President exercise powers of declaring a state of emergency? War? Peace? What are the powers and functions of the National Assembly in a state of emergency? War? Peace?
Article 58(1) of the Constitution provides that a state of emergency may be declared only under Article 132 (4) (d) and only when: First, the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency. Second, the declaration is necessary to meet the circumstances for which the emergency is declared.
160 See the following chapters of CODRALKA 1: Chapter 4 on Participation and Representation in Kenya and Africa: Electoral System, Parties, CSOs, Business Organisations (discussing the Fourth Schedule); Chapters 11, 12 and 13 on President Deputy President, Vice President, Prime Minister and Deputy Prime Minister (DPM) in Kenya and Africa; …. 39
Significantly, a declaration of a state of emergency, and any legislation enacted or other action taken in consequence of the declaration, shall be effective only prospectively and for not longer than fourteen days from the date of the declaration, unless the National Assembly resolves to extend the declaration.161 This is a constitutional safeguard against a President who might want to use this power inappropriately. The National Assembly may extend a declaration of a state of emergency in the manner prescribed under the Constitution for not longer than two months at a time.162 The first extension of requires a supporting vote of at least two-thirds of all the members of the National Assembly, and any subsequent extension requires a supporting vote of at least three-quarters of all the members of the National Assembly.163
Under Article 58 (5), the Supreme Court (SCORK) has three powers regarding the declaration of a state of emergency. First, it may decide on the validity of a declaration of a state of emergency. Second, it may decide on the validity of any extension of a declaration of a state of emergency. And third, it may decide on the validity of any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
15.16 Security administration and regulation during transition and elections in Kenya What are the electoral processes and the issues regarding security and criminal justice system in Kenya?
15.16.1 Security issues during presidential, parliamentary and county elections and transition in Kenya What are the security issues prevalent during and after presidential, parliamentary and county elections, power transfer and transition in Kenya? They include electoral fraud, manipulation and related electoral offences.164 Elections petitions: electoral irregularities vis-à-vis electoral offences.165
161 Article 58 (2) states, “a declaration of a state of emergency, and any legislation enacted or other action taken in consequence of the declaration, shall be effective only— (a) prospectively; and (b) for not longer than fourteen days from the date of the declaration, unless the National Assembly resolves to extend the declaration.” 162 Article 58 (3) states, “the National Assembly may extend a declaration of a state of emergency— (a) by resolution adopted— (i) following a public debate in the National Assembly; and (ii) by the majorities specified in clause (4); and (b) for not longer than two months at a time.” 163 Article 58 (4) states, “the first extension of the declaration of a state of emergency requires a supporting vote of at least two-thirds of all the members of the National Assembly, and any subsequent extension requires a supporting vote of at least three-quarters of all the members of the National Assembly.” 164 See The Africa Centre for Open Governance (AFRCOG) v. Ahmed Issack Hassan & Another [2013] eKLR. (Where High Court claimed it had no jurisdiction to grant application for order to stop manual tallying of ballots without actual verification with the actual constituency based results in the various forms); and Raila Odinga v. The Independent Electoral and Boundaries Commission & 3 Others Petition No. 5 of 2013, Supreme Court of Kenya (on the election process and ensuing results). Raila 2017; Mwau v IEBC 2017….(NASA arguments-once there is electoral violence, especially suffered by the state…nullify…. NASA lawyers prevented from participating or 40
Political violence before, during and after elections166 Related security challenges…… Role of the Kenyan state in electoral violence and insecurity167 …… Who has been responsible for security in Kenya during succession and transition?..... Reforming administration of security in elections168…..
15.16.2 Administering Presidential Elections in Kenya: Citizen rights to security and good of governance The responsibility to protect citizens and to provide for their safety and security is a prime function of government. For more than a decade there has been growing concern amongst Kenyans about their safety and security.
Kenyans are generally concerned about security issues in four fronts: security of the person – including in the workplace; security of property, security of the home; and security in society generally.
The major security concerns in Kenya include, inter alia, the following eight (8).[Some of these to be integrated into the earlier parts of this Chapter 12- to conceptualize, problematize and contextualize security and criminal justice system in Kenya and Africa]
First, injustices associated with leading to intimidation and pre-electoral, electoral and post- electoral violence.
Second, tribal gangs, vigilantes and militia; Mungiki, Sungu Sungu, Sabaot Land Defence Force (SLDF), Mombasa Republican Council (MRC)169 etc.
advancing the arguments although NASA was cited as a respondent in pleading…. The present author, Mr Paul Mwangi and Mr Nelon Havi had prepared and were in court….only allowed to respond to some applications…. Not to the Petition or counter petition…. Cf. Chapters 29 and 30 of CODRALKA 1….) 165 Election petitions against Paul Ngei (1975)…and its consequences….Ngei Constitutional Amendment 1975….; Musikari Kombo (Khulia shilulu) …. Moses Masika Wetangula v. Musikari kombo. The constitutional, statutory….position in the post-Wetangula era…. See also Chapters 4, 29 and 30 CODRALKA 1. 166 See case on qualification eligibility of post-election violence indictees: International Centre for Policy and Conflict & 5 Others v. Hon. Attorney-General & 4 Others [2013] eKLR (on President Uhuru Kenyatta and Deputy President (DP) William Ruto’s qualification eligibility). The following related case involved eligibility of State Officers: Isaac Aluoch Polo Aluochier v. Independent Electoral and Boundaries Commission (IEBC) & 19 Others [2013] eKLR (on state officers running for seats). 167 See the Building Bridges Initiative (BBI), 2019 Report, Chapter 10 on Safety and Security, 88-92; Building Bridges Initiative (BBI), 2020 Report, 18. 168Ibid. Some of the proposals include ‘equal distribution of policing resources, prosecutions and preventions efforts; Operationalise a comprehensive National Emergency, Disaster and Crisis Management Strategy rooted in law that is linked to County, sub-County and Ward level disaster response plans that are renewed periodically; continuous strengthening of national cybersecurity skills, processes, laws, and institutions. Strengthen the performance and service orientation of the National Police Service and support the mental health and wellness of officers,” among others… 41
Third, inter-ethnic clashes and feuds.170 For instance, the 2007/2008 post-election violence (PEV), Kalenjin-Kikuyu land ownership conflicts in Rift Valley, and the Orma and Pokomo crisis.
Fourth, corruption, looting, money laundering that is controlled by co-ethnics and sycophants. These include money laundering, intellectual property (IP) infringement, piracy and counterfeiting
Fifth, drug trafficking.
Sixth, territorial invasion: Al-Shabaab, Merille bandits invasion171 and other militia.
Seventh, private security firms: security in institutions, homes etc. (are they constitutionally integrated into the security system? Are they trained? Regulated?)…
Eighth, deterioration of public confidence in security system172 due to historical and contemporary police brutality, harassment and intimidation by security agencies, including during the coronavirus disease 2019 (COVID-19) curfew enforcement,173 Mwakenya, Mpatanishi, December 12 movement.174 This is itself a security problem.
This part focuses on the growing concern revolving around security during the election period. Security concerns in the administration of general elections have been a major issues in recent
169 Ibid. 170 See Murithi Mutiga (2017) “Amid fears of election violence, Kenyans seek a way past inter-ethnic conflict,” Guardian, Africa, 4/8/2017, at https://theguardian.com/commentisfree/2017/aug/04/fear-election-violence-kenya- ethnic-divisions-hope-new-generation (accessed April 4, 2020). See also John Oucho (2004) “Insight into the root causes of ethnic rivalry in Kenya,” Daily Nation, 19/12/2004, at https://www.nation.co.ke/lifestyle/lifestyle/1214- 37505-vamjfaz/index.html (accessed April 3, 2020). 171 Hesborn Etyang (2019) “Don’t seize guns, we’ll be sitting ducks in Turkana,” Star, Rift Valley, 8/10/2019, at https://www.the-star.co.ke/counties/rift-valley/2019-1-08-dont-seize -guns-well-be-sitting-ducks-in-turkana/ (accessed April 3, 2020). See also Vincent Bartoo (2011) “Catalogue of Merille attacks on Kenyans,” Standard, 4/5/2011, at https://www.standardmedia.co.ke/article/2000034421/cataloguue-of-merille-attacks-on-kenyans (accessed April 3, 2020). 172 Ibid. This is one of the key issues that the Building Bridges Initiative (BBI) taskforce 2019 AND 2020 Reports dealt with. 173 John Allan Namu & Tess Riley (2020) “Nine weeks of bloodshed: how brutal policing of Kenya's Covid curfew left 15 dead,” Guardian, October 23, 2020, at https://www.theguardian.com/global-development/2020/oct/23/brutal- policing-kenyas-covid-curfew-left-15-dead (accessed December 22, 2020); Jael Mboga (2021) “Motorists trying to beat Covid curfew stuck in Thika Road traffic, again,” Standard, April 18, 2021, at https://www.standardmedia.co.ke/kenya/article/2001410078/motorists-trying-to-beat-covid-curfew-stuck-in-thika- road-traffic-again (accessed April 30, 2021). 174 Durrani & Shuraz (2016) “Progressive Librarianship: Perspectives from Kenya and Britain, 1979-2010,” Mpatanishi, at https://books.google.co.ke/books?id=5vxyDQAAQBAJ&pg=PA106&lpg=PA106&dq=mwakenya,+mpatanishi,+de cember+12&source=bl&ots=DLVib3UEgO&sig=ACfU3U1CPTBW1TW66lktk6aBgxFWvyjvUw&hl=en&sa=X& ved=2ahUKEwiRh43MyeHtAhWFA2MBHX8TD6kQ6AEwCXoECAUQAg (accessed December 22, 2020) 42
times. The security challenge becomes even more problematic when the elections relate to the presidency. Given that the stakes associated with the presidency are always high, instances of insecurity also arise.
It is important that we ask the following questions:
First, why has Kenya had recurring electoral and related violence since the advent of multi-party politics in 1992? Where is the problem? Is it the administration of the elections? Is the problem a governance problem? Are institutions charged with ensuring peace and security during the elections to blame for or is it a policy problem?
Second, is the government ever going to guarantee the right to security to its citizens? Are Kenyans ever going to be safe during presidential elections? What about the contestants in presidential elections?
Electoral violence, other crimes, and related lawlessness have been common especially since the 1992 presidential elections. The advent of multiparty politics in Kenya made the presidential race competitive. And because presidency has been the imperial and patrimonial dispenser of state power and largesse, it has been the prize that ethnic, clashes and related interest groups sought to capture. The result has been the violence, tribal classes, and related security challenges always marred the presidential race henceforth.
About four typologies are emerging regarding presidential electoral violence and related crime or security concerns. First, pre-election, during, and post-election violence or security concerns. Second, spot v. structural violence or insecurity. Third, spontaneous violence v. revenge attacks or security challenges. And fourth, militia v. ethnic resource-based v. state sponsored violence or insecurity.
I argue that the issues of efficiency in governance, and efficiency in administration of presidential elections are likely to guarantee peace and security to Kenyans, especially in the election period. This presentation will focus on the following three core issues.
First, security as a human rights issue and problem in Kenya.
Second, security challenges in the administration and management of elections in Kenya, the focus being on presidential elections.175
Third, governance as a security problem.
175 Ibid. 43
15.17 Situational Analysis of Security in Elections in Kenya and Africa Who has been responsible for security in presidential elections in Kenya and Africa?
15.17.1 Security in presidential and gubernatorial elections in Kenya and Africa Security in presidential and gubernatorial elections have witnessed major security breaches. These elections have been the primary responsibility of the state through its various agencies like the Minister for Interior or Internal Security, Principal Secretary for Interior or Internal Security; Kenya Police, General Service Unit (GSU), Criminal Investigations Directorate (CID), the Administration Police (AP); National Security Intelligence Service (NSIS), and the Provincial Administration (including the Provincial Commissioner (PC), District Commissioner (DC), District Officer (DO), Chief, Assistant Chief, Mukuru, Mlango, Village Elder, Nyumba Kumi …), among others. The Independent Electoral and Boundaries Commission (IEBC) is also a critical player in this.
The Kenya Police however failed to the extent that the National Task Force on Police Reform was created. During the 2007/2008 post-election violence, a total of 1,133 people died as per the Waki Commission Report. Additionally, 117, 216 private properties were destroyed and 350,000 people displaced. It was felt that the levels of violence and destruction would have been minimized had the Police responded in a professional non-partisan manner.
Policing by the Kenya Police has in recent years been undertaken through a highly centralized command structure from the Police Headquarters in Nairobi. This has eroded the powers of the provincial and district commanders and contributed to widespread dissatisfaction amongst police officers, stifled police initiative and alienated members of the public. During the post-election violence, there were even areas in Kenya where police were found to have aided members from one tribal community in combating members of another community. This contributed further towards administrative impunity and insecurity of Kenyans.
15.17.2 Post-independence electoral security incidents in Kenya and Africa There has been an array of incidents involving electoral fraud, manipulation and related offences in Kenya since time in memorial. These include voter buying, bribery, rigging, manipulation of votes, manipulation of voters’ lists, destruction of ballot papers and other election materials, among others.176 The unchecked escalation of election of violence offences is potentially hazardous to the state of security in a nation especially if such offences touch on presidential elections. Stakes are always high in a presidential race partly due to the historical power associated with the office of the presidency.
176 Election Petition No. 3 of 2013; Kenya National Commission on Human Rights Report (2017) “The Fallacious vote: A Human Rights Account of the 2017 Political Primaries,” May 2017, at http://www.knchr.org/Portals/0/OccasionalReports/Party%20Nominations%20%20Report%20- %20KNCHR.pdf?ver=2017-05-15-110816-540 (accessed April 6, 2020). …. 44
15.17.3 Security of the citizens in elections in Kenya and Africa Political violence poses the biggest threat to security in presidential elections. Electoral violence, other crimes, and related lawlessness have been common, especially since the 1992 presidential elections. Such violence is mostly triggered by the conduct of politicians who through their actin and words cause political temperatures and tempers to flare. Politicians in this case incite voters, revert to tribal politics, use criminal gangs and militias like Mungiki, Chinkororo etc to terrorize opponents and voters, openly engage in electoral offences, among other actions.177
It is alleged that politicians fuelled tribal clashes in the 1992 and 1997 presidential elections for personal, political, and partisan advantage. Following the fraudulent 2007 elections, there was mass killing and displacement of people. 15.17.4 Security of the contestants in Kenya and Africa Contestants are entitled to security as a matter of right.178
However, over the past general elections, there were reports of threats to some candidates’ security. However, not much was done to ensure their security. Major examples were reports of assassination threats against Raila Odinga.179 Mr Gitobu Imanyara was also allegedly accosted by “Uhuru sycophants.”180 It is in the interest of Kenya as a whole that the security agencies, organs and officials ensure every candidate’s security since in the event that any were to be assassinated or (badly) injured, socio-political unrest would be bound to ensue. This is even more crucial given Kenya’s traumatic history of political assassinations and electoral violence.181
177 Human Rights Watch (2014) “We were sent to kill you.”… Gang Attacks in Western Kenya and the Government’s Failed Response,” April 24, 2014, at https://www.hrw.org/report/2014/04/24/we-were-sent-kill-you/gang-attacks-western-kenya-and-governments-failed- response (accessed April 6, 2020); See the National Crime Research Centre Report (2016) “Election Crimes And Offences in Kenya,” Kenya, at http://crimeresearch.go.ke/publications/Elections%20Crimes%20&%20Offences%20in%20Kenya.pdf (accessed April 6, 2020) page 35; ibid. 178 …. 179 See Ben Sihanya (forthcoming 2021) “The President, Deputy President, Prime Minister and Deputy Prime Minister in Kenya and Africa,” Chapter 11, 12 and 13, CODRALKA 1. Ben Sihanya (forthcoming 2021) “Mediating Kenya’s post-election crises: the politics and limits of power sharing agreements,” Chapter 9, CODRALKA 2. 180 Caroline Wafula (2012) “Imanyara says ‘willing to die’ after night ordeal,” Daily Nation, Nairobi, 18/4/2012, at https://www.nation.co.ke/news/politics/1064-1388772-hial6l/index.html (accessed April 6, 2020); 181 Some retrogressives and cynics have claimed that assassination reports may be mere allegations or false puffs for strategic political ends…. 45
15.18 Security situations in Kenya and fidelity to the Constitution Security flaws including theTana Delta crisis, Kisumu, Mombasa Republican Council (MRC), Baragoi raids in Suguta Valley, Garissa, Nairobi (the 2014 grenade attacks in Gikomba)182, Bungoma county, Busia county gang attacks from March to June 2013, Kitui, Moyale, Mpeketoni attacks in 2014 and the Kibaoni attack, Mandera twin terror attacks, Mandera bus attacks, Kapedo etc…183
The Kenya Government has not found a lasting solution to critical security challenges, most of which seemed related to the March 4, 2013 and 2017 General elections. These include security problems in the Tana Delta, Kisumu, the Coast Region (MRC), Baragoi (Suguta valley) raid,Bungoma and Busia county gang attacks, and Nairobi (the 2014 grenade attacks in Gikomba).
15.18.1 Security in the Tana Delta of Kenya in 2012 Clashes erupted in the Tana delta region in May 2012. The ethnic violence which has existed between the Orma and Pokomo communities has continued to escalate and reached its peak in September 2012. Hundreds were killed or injured and a lot of property. In a press statement, Danson Mungatana, the Garsen MP, blamed the Government’s inaction for the escalation of violence between the Orma and Pokomo communities. He stated:
“If the regular police were there; if Administration Police was there; if the General Service Unit was there and (yet) their equipment was stolen, there is no other better time than this for the military to be engaged on the ground to pacify the area.”
The Garsen Member of Parliament (MP) further pointed out that the National Intelligence Service and Criminal Investigations Department had failed to act on information given to them seven months before, regarding the arming of militias in the region. The question is, how could a few people who were armed and camping in a forest be allowed to unleash terror on citizens?184
After the failure of Kenyan police to ensure security in the area, citizens were taken by further surprise when the intervening General Service Unit (GSU) officers blocked the Kenya Red Cross Society (KRCS) officials from accessing a village in Tana Delta. The Kenya Red Cross Society
182 France24 (2014) “Deadly blasts strike busy market centre of Nairobi,” Nairobi, 16/5/2014, at https://www.france24.com/en/20140516-blasts-attack-market-centre-nairobi-gikomba-kenya (accessed April6, 2020). The 3 suspects connected to the 2014 grenade attack were released by High court due to contradictory witness statements by prosecution witnesses. See Agnes Oloo (2016) “Court releases suspects in 2014 Gikomba grenade attack that killed 10,” Citizen Digital, 15/12/2016, at https://citizentv.co.ke/news/court-releases-suspects-in- 2014-gikomba-grenade-attack-that-killed-10-152120/ (accessed April 6, 2020). 183 See Ben Sihanya (2013) “Public participation and public interest lawyering under the Kenyan Constitution: theory, process and reforms,” Vol 9 (1), Law Society of Kenya Journal, 1–32; Who are the terrorists? 184 Capital News (2012) “Tana Delta MPs want army sent to quell violence,” Capital News, 10/9/2012, at http://www.capitalfm.co.ke/news/2012/09/tana-delta-mps-want-army-sent-to-quell-violence/ (accessed 8/11/2012). 46
(KRCS) was delivering humanitarian aid to families affected by the attacks. The media had similarly been barred from the area after houses were razed in Ozi area. There were reports that the officers could have torched the houses as they combed the area to flush out those with illegal firearms and the Member of Parliament wanted to know who issued the directive and if the reports were true. Mr Danson Mungatana suggested that police officers with Cushitic leanings be removed from the group dispatched to the area to dispel fears that the operation could be lopsided.185
In August 2012, then acting Internal Security Minister, Yusuf Haji,186 called a “peace” meeting involving the Government and representatives of the Orma and Pokomo communities.187 Galole Member of Parliament (MP), Dhadho Godhana refused to attend the meeting stating that the convener of the meeting (Mr Haji) was an interested party in the Tana Delta crisis and therefore was not placed to call and chair a meeting aimed at solving the disputes in the region.188
He (Godhana) claimed the Minister, who was the Member of Parliament (MP) for neighboring Ijara constituency, had engaged in an expansionist agenda aimed at controlling the Tana River region. Specifically, Mr Dhadho Godhana claimed that the Minister's house, Yusuf Haji Secondary School (named after him), Shurie Secondary School (named after his father) and a number of other Ijara district offices are now in Tana River, instead of Garissa County.189 Mr Godhana has since been charged with incitement. Mr Yusuf Haji has since testified in the case.190
15.18.2 Insecurity in Kisumu, Kenya in 2012, 2017/18 There were protests in Kisumu in late October 2012 due to a surge in insecurity and violent crime that climaxed in the murder of Kisumu Town West Constituency ODM chairman, Shem Kwega. He was killed by armed thugs and the shootings happened in broad daylight. His wife sustained serious injury. The gang is reported to have driven away in a previously hijacked
185 “Mungatana claims GSU razed houses in Tana,” Standard Digital, 19/9/2012, at http://www.standardmedia.co.ke/?articleID=2000066449 (accessed 8/11/2012). 186 He was appointed the Chairperson of the Presidential Taskforce and later Steering Committee on the Building Bridges Initiative (BBI). 187 Zadock Angira (2012) “Mr Godhana arrested over Tana clashes,” Saturday Nation, November 24, 2012, at http://www.nation.co.ke/News/Minister+Godhana+arrested+over+Tana+clashes/-/1056/1505024/-/gonf5cz/- /index.html (accessed 24/11/2012). 188 Cyrus Ombati & Philip Mwakio (2012) “12 killed in renewed Tana River clashes,” Standard Digital, 7/9/2012, at http://www.standardmedia.co.ke/index.php/videos/business/ktn.php?articleID=2000065649&pageNo=1&story_title = (accessed 24/11/2012). 189 Mosoku Geoffrey (2012) “Godhana counter: accuses Haji over Tana,” Star, Nairobi, 15/8/2012, at http://www.the-star.co.ke/news/article-4788/godhana-counter-accuses-haji-over-tana (accessed 24/11/2012). 190 Alphonce Mungahu (2012) “Minister Haji testifies in Godhana incitement case,” Star 22/11/2012, at http://www.the-star.co.ke/news/article-96604/minister-haji-testifies-godhana-incitement-case (accessed 2/12/2012). 47
vehicle. The shooting incident sparked off a wave of protests by local residents. They marched in the streets led by Assistant Minister Prof Ayiecho Olweny, demanding action.191
This incident occurred only a few days after an HIV/Aids researcher was murdered in Kisumu. Dr Joseph Odhiambo of the Centre for Disease Control (CDC) was killed by three gangsters in Tom Mboya Estate on Saturday, October 27, 2012.192 The third person to be killed in similar circumstances was a security guard at Kisumu Central Nyanza Seventh Day Adventist Church. The robbers who killed him ran away with the church offertory as well.193 There were allegations that two rival groups caused the mayhem: “China Squad” and “American Marines” and that the conduct of some of them reflected the practices and tradition of militias elsewhere especially Mungiki.194
These three incidents raised questions as to the ability of the Government, and expressly the Kenya Police, to enforce citizens’ right to security. Some semblance of normalcy resumed after the Prime Minister addressed rallies in Kisumu and instructed that the Kisumu Officer Commanding Station (OCS) who had just been transferred, be returned to Kisumu.195
15.18.3 Westgate Attack, Nairobi and Hostage Crisis in Kenya in 2013 What constitutional, legal, policy and administrative issues arose from the attack at Westgate in 2013? What reforms have been proposed and implemented?
On Saturday, September 21, 2013, a group of terrorists whose number is unknown to date brought the Westgate Mall under siege. The armed assailants shot arbitrarily at innocent customers and set off a number of grenades. Over sixty five people were reported to have been
191 Mangoa Mosota (2012) “Protests over insecurity in Kisumu,” Standard Digital, 29/10/2012, at http://www.standardmedia.co.ke/?articleID=2000069501&story_title=Kenya-Protests-over-insecurity-in-Kisumu (accessed 24/11/2012). 192 Mangoa Mosota (2012) “Top AIDS researcher murdered,” Standard Digital, 29/10/2012, at http://www.standardmedia.co.ke/?articleID=2000069480&story_title=Kenya-Top-Aids-researcher-murdered (accessed 24/11/2012). See also Justus Wanga (2012) “Crime wave in town linked to ‘Kisumu Mungiki,’” 4/11/2012, at http://www.nation.co.ke/News/Crime+wave+in+town+linked+to+Kisumu+Mungiki/-/1056/1611026/- /vxo90k/-/index.html (accessed 5/12/2012); Daily Nation (2012) “Mungiki-type gangs in Kisumu,” 30/10/2012, at http://www.nation.co.ke/oped/Letters/Mungiki-type-gangs-in-Kisumu-Political-sponsors-behind-killings/- /440806/1607326/-/1m8lvyz/-/index.html (accessed 5/12/2012). 193 The Standard Group (2012) “Rising gang attacks leave Kisumu in panick,” Standard Digital, 30/10/2012, at http://www.standardmedia.co.ke/index.php/index.php?articleID=2000069512&pageNo=2 (accessed 5/12/2012). 194 Mungiki has largely been associated with Central Kenya politicians and the Rift Valley. There have been allegations that Mungiki has enjoyed patronage from high ranking politicians and security officers in the Moi and Kibaki administrations. Some politicians like Uhuru M Kenyatta have declared such links. Cf. Peter Mwangi Kagwanja (2003) “Facing Mount Kenya of facing Mecca? The Mungiki, ethnic violence and politics of the Moi succession in Kenya, 1987-2002,” African Affairs, 25-24. 195 At first, officials at Police Headquarters argued that the Prime Minister had no powers on police transfers. Constitutionalists argued that the Prime Minister has such a mandate because he had the power to supervise and coordinate Government functions, including ministries, under the Constitution and the National Accord and Reconciliation Act (NARA). 48
killed during the attack and it took the military nearly four days to bring the mall under its full control. Al-Shabaab reportedly claimed responsibility.
The incident raised several questions regarding the ability of Kenya’s security organs. At the inception, Kenya Police were deployed to the scene as it was thought to be a mere robbery. When the imminent danger of the situation escalated, GSU were engaged in place of the Kenya Police, and as a measure of last resort, the Kenya Defence Forces were deployed. There was poor organization among the three bodies and hence it comes as no shock that the entire situation was poorly handled.196
The number and identity of the hostages allegedly held by the terrorists remains uncertain, and the number of the terrorists themselves is rumoured to have escaped the scene through a tunnel forming part of the Mall’s sewerage system that connects to Nairobi River where they are said to have surfaced.
Did the National Intelligence Service (NIS) have prior information? Did the National Intelligence Service (NIS) and relevant security agencies inform the relevant security organs? Did the Chair of the National Security Council (NSC) and/or the Commander-in-Chief and/or his office have the information in advance?
What measures, if any, did they take to prevent and manage the attack and hostage crisis? Have they taken responsibility? Or simply blamed others (e.g. alternative centre of power… i.e. wag the dog?)197 What did President Kenya do about the inquiry that he had promised?198
In an article, Biketi Kikechi stated,
“The President is said to have seethed with rage after it emerged that some senior officials in Harambee House, the former Office of the President, were issuing unauthorised instructions over
196 Roy Gachuhi (2013) “The military lost the plot in Westgate siege, says retired general,” Daily Nation, October 4, 2013, at http://www.nation.co.ke/news/The-military-lost-the-plot-in-Westgate-siege/-/1056/2019306/-/9jqryi/- /index.html (accessed 5/10/2013). 197 Biketi Kikechi (2013) “Westgate claims Kimemia’s job,” The Standard, September 29, 2013, at http://www.standardmedia.co.ke/m/?articleID=2000094485&story_title=Westgate-claims-Kimemias-job (accessed 7/10/2013). Kiketi. Not aware that he was wielding power? Receiving intelligence reports? Really? Killing the Kingmaker? Or wagging the dog? Kinyua to replace Kimemia in pecking order? Powers? Art 132? NB. Nobody is being fired here. Competitive recruitment? Weren’t both reportedly involved in election maneuvers? Kinyua to reinforce Kimemia in OP- “we are one.” 198 …. 49
the Westgate Mall attack. And immediately after making his point, the President introduced Joseph Kinyua to replace former powerful PS in the Office of the President Mr Kimemia.”199
What did the then Defence CS Rachel Omamo and General (later Rtd) Karangi of Kenya Defence Forces tell the media and human rights groups post-Westgate age? First, that the US media…closed in the US …and did not publicise or criticize on the attack? No. Some media were objective on security and criminal justice weaknesses. Second, that an inquiry was done on 9/11? There was the 9/11 Commission. The focus in such a case is fact finding to aid …..not (necessarily) finger pointing; not a defensive attitude. Third, what about command coordination?
What lessons did the NSC Chairperson, C-in-C (the President) and Kenyan security agencies learn from the Westgate attack? What reforms did they propose and implement on security and criminal justice system? In November 2020, two of the suspects in the Westgate attack (Mohamed Ahmed and Hussein Hassan Mustafa) were found guilty by the High Court and sentenced …. The third suspect, Liban Omar was however, acquitted due to lack of sufficient evidence.200
15.18.4 Issuance of travel advisories by the US, UK and other foreign states on Kenya [To discuss travel advisories regarding COVID-19….in Kenya and Africa] What is the function of the Government, Executive, President or Premiers in the security of citizens at home and abroad? And especially in Kenya?
The US, UK and other foreign countries issued travel advisories against travelling to some parts of Kenya due to the threat posed by terrorism because the country was no longer secure. This was also debated in the context of the coronavirus disease 2019 (COVID-19) pandemic where the UK issued a travel ban advisory against Kenya in April 2021. The UK Government argued that Kenya had shown signs of the South African strain of the coronavirus201
Following the November 4, 2019, Sunday terror attack at Mpeketoni, and Kibaoni raids/attacks,202 the British government renewed its travel advisories to sections of Kenya.203
199 Biketi Kikechi (2013) “Uhuru reads the Riot Act on people he accuses of creating ‘a parallel centre of power,” Standard, Nairobi, 29/9/2013, at https://www.standardmedia.co.ke/article/2000094485/uhuru-reads-the-riot-act-on- people-he-accuses-of-creating-a-parallel-centre-of-power (accessed 17/4/2019). 200 Richard Munguti (2020) “Westgate suspects: Two found guilty, one acquitted,” Daily Nation, October 16, 2020, at https://nation.africa/kenya/news/westgate-attack-suspects-found-guilty-one-acquitted-2459386 (accessed December 18, 2020). 201 Ronald Lwere Kato (2021) “’Discriminatory’: Kenya hits back after UK travel ban,” Africa News, April 5, 2021, at https://www.africanews.com/2021/04/05/discriminatory-kenya-hits-back-after-uk-travel-ban// (accessed May 1, 2021). 202 Kalume Kazungu (2019) “Alarm after 3 injured in Lamu machete attacks,” Daily Nation, Nairobi, 29/12/2019, at https://www.nation.co.ke/counties/lamu/3-hurt-in-Lamu-machete-attacks/3444912-5401066-l3x2n8/index.html (accessed April 6, 2020). 50
Further, this year, the United Kingdom released another travel advisory when three Americans were killed by Al-shabaab after they attacked a US airbase in Lamu, Manda Airbase.204
The travel advisories have a long term effect on Kenyans and the tourism industry. This is reminiscent to the scenario of November, 2002, terrorist attacks on Mombasa’s Paradise Lodge which dealt the tourism industry a severe blow following the travel advisories issued by the US and UK governments warning their citizens against travelling to Kenya.205
15.18.5 Mpeketoni attack in Kenya in 2014 Following a two day attack at Mpeketoni in Lamu County on June 15, 2014, left at least 60 people dead. President Uhuru Kenyatta while addressing the Nation on Tuesday, June 17, 2014, blamed security officials in Lamu for the collapse in intelligence and response to the attack, which had left the killers roaming the area for four hours. Senate Majority Leader Kithure Kindiki206 and Elgeyo Marakwet Senator Kipchumba Murkomen led both Houses of Parliament in demanding a radical surgery in the security organs in the country.207
This came amid President Kenyatta II promising after the Westgate Mall terrorist attack in 2013 to establish a commission of inquiry into the security lapses in the country. The President to date has not commented on this matter.208 President Kenyatta II during the State of the Nation Report to Parliament on March, 2014, promised far-reaching reforms of the country’s security to better protect the public from terrorism, according to the accountability documents he filed with Parliament.209
One of the challenges facing the President is that some of the top security chiefs including the Inspector-General, National Intelligence Service (NIS) Director-General and Criminal Investigations Directorate (CID) Director enjoy security of tenure under the law and therefore he
203 Standard Reporter (2014) “Britain now renews travel advidories” Standard Digital on June 16, 2014 at http://www.standardmedia.co.ke/article/2000125015/britain-now-renews-travel-advisories (accessed on June 23, 2014) 204 Eunice Murathe (2020) “ UK issues travel advisory to its citizens visiting Kenya,” East African, East Africa, Kenya, 12/1/2020, at https://www.theeastafrican.co.ke/news/ea/UK-issues-Kenya-travel-advisory/4552908- 5415262-11pkvopz/index.html (accessed April 6, 2020). 205 Zachary Ochieng (2003) “Tourism back on the brink of collapse,” News from Africa, July, 2003, at http://www.newsfromafrica.org/newsfromafrica/articles/art_1031.html (accessed on June 23, 2014). 206 Senator, Tharaka Nithi County, 2013-2017. 207 Dennis Odunga and Mugumo Munene (2014) “Uhuru’s headache as pressure mounts to overhaul security” Daily Nation, 21/6/2014, at http://www.nation.co.ke/news/politics/Uhuru-headache-as-pressure-mounts-to-overhaul- security/-/1064/2357572/-/s7c557z/-/index.html (accessed on June 23, 2014) 208 According to a Sunday Nation report, it is alleged that plans to establish the commission of inquiry were shelved as result of fears of exposing “sensitive Kenyan security details” and fear among the top security chiefs of a vote of no confidence being passed against them. See Daily Nation (2014) “Commission of inquiry that never was,” 20/9/2014, at https://mobile.nation.co.ke/news/Commission-of-inquiry-that-never-was/1950946-2460374-format- xhtml-dxe2a9z/index.html (accessed April 6, 2020). 209 Ibid. 51
can do little about this. However, in his State of the Nation Report, the President promised a shake-up in the National Intelligence Service (NIS) but this is yet to be seen. Former State House Spokesperson and Head of the Presidential Strategic Communication Unit (PSCU), Mr Manoah Esipisu.210
Just like the Westgate Attack, the National Intelligence Service (NIS) Officers alleged that they relayed the information to their bosses in Nairobi about a looming attack by Al-Shabaab. Just like the Westgate attack, the information was never acted upon.211
15.18.6 Kapedo attack in Kenya in 2014 The killing of 22 police officers at Kapedo by bandits in 2014 was a clear indication of loopholes that needed to be addressed in Kenya’s security structures. The Kapedo attack raised concerns on the need for the government to review its policy on deploying fresh graduates from Kenya Defence Training College to such areas. It also raised questions on the issue of disarmament and how it should be approached.212
15.18.6.1 Natural resource questions and security or policing in Kapedo, in Kenya in 2019 Insecurity issues have persisted in Kapedo since 2014 and the gist of the conflict is said to originate from the quest by the surrounding communities to have control of the natural resources situated there. As Turkana Governor Josphat Nanok was quoted in 2018:
“With the border region being rich minerals and natural resources, the question of a political hand orchestrating the attacks is not far from our minds. Failure to address the situation endorses the narrative of a bigger scheme to scare residents from their land.”213
The issues at Kapedo point to the constitutional question of the viability of the current county boundaries214 and the Building Bridges Initiative (BBI) proposals, constitutional reform and amendment question in 2019 and 2020…..
210 See Mr Manoah Esipisu . during an interview with the Sunday Nation said the security shake-up was still under consideration and was quite on the issue whether there would be any changes in the wake of the Mpeketoni massacre…. 211 Oduor Ongwen (2014) “Rejecting Al-Shabaab responsibility for Mpeketoni attack a first for Kenya,” Kenya Today, June 20, 2014, at http://www.kenya-today.com/news/oduor-ongwen-rejecting-al-shabaab-responsibility- mpeketoni-attack-first-kenya (accessed on June 23, 2014) 212 Vincent Mabatuk & Sila Koskei (2014) “Bandits lay ambush and massacre 21 APs in Kapedo,” Standard Digital, Nairobi, November 02, 2014, at http://www.standardmedia.co.ke/thecounties/article/2000140160/bandits-lay- ambush-and-massacre-21-aps-in-kapedo (accessed 19/2/15). 213 See Michael Olingo (2018) “Boinett and Matiang’i have surrendered Kapedo to bandits - Governor Nanok,” Tuko, Nairobi, at https://www.tuko.co.ke/273200-boinett-matiangi-surrendered-kapedo-bandits-governor- nanok.html#273200 (accessed 8/2/2019). 214 The last boundary review was gazetted (?) on March 7, 2012. See Katiba Corner (2018) “Fair representation in new boundaries review by IEBC,” Katiba Institute, 6/3/2018, at https://www.katibainstitute.org/fair-representation- in-new-boundaries-review-by-iebc/ (accessed April 6, 2020).The Independent Electoral and Boundaries Commission (IEBC) kicked up a storm when it announced its plans to review constituency boundaries in March 52
15.18.7 Mandera twin terror attack in Kenya215 Twin terror attacks were executed in Mandera which included a massacre of 36 labourers at a quarry and 28 teachers returning to Nairobi for the Christmas holidays raises concern on the government failure to provide security in remote areas.216 This prompted a strike of about 700 teachers who refused to return to work in the North-East part of the country and instead asked to be stationed to other safe areas.
15.18.8 Garissa University College terror attack in Kenya in 2017 The attack was carried out by the Al-shabaab terror group on April 2, 2015, gunmen stormed the Garissa University College in Garissa, killing 147 people and injuring at least 79 others.217 While addressing the nation after the attacks, President Uhuru Kenyatta instructed the Inspector General of Police to speed up the training of 10,000 recruits, because Kenya had “suffered unnecessarily” due to shortage of security personnel.
This order was an open disregard to the Judiciary after the High Court had on July 14, 2014 stopped the enrolment of the new recruits into the Kenya Police Service on grounds that the process of recruiting was marred with corruption and other irregularities that violated the Constitution.218
15.18.9 Nadome, Pokot killings in Kenya in 2015 One of the worst bandit attacks by cattle rustlers was orchestrated in East Pokot on May 4, 2015, just a month after the Garissa attacks. At least 50 people were murdered during the attacks, This occurred just a few weeks after the Inspector General of Police Joseph Boinnet issued a 48-hour ultimatum to cattle rustlers in the Rift Valley to hand in their guns.219
2020, based on the 2019 population census data. See Patrick Lang’at (2020) “IEBC chief Chebukati unveils plan to review electoral boundaries,” Daily Nation, Nairobi, 16/2/2020,, at https://www.nation.co.ke/news/IEBC-unveils- plan-to-review-electoral-boundaries/1056-5457260-rqvjmf/index.html (accessed April 6, 2020). What were or are the (enduring) constitutional, legal, political, administrative and economic issues?
215 Who are the terrorists? 216 Catrina Stewart (2014) “Kenya bus attack: Al-Shabaab gunmen behead and shoot 36 non-Muslim labourers at Mandera quarry,” The Independent, Nairobi, December 02, 2014, at http://www.independent.co.uk/news/world/africa/kenya-bus-attack-gunmen-kill-36-at-mandera-quarry- 9896973.html (accessed 19/02/15). 217 BBC (2015) “Kenya al-Shabab attack: Security questions as Garissa dead mourned,” BBC News, at http://www.bbc.com/news/world-africa-32177123 (accessed 13/06/2015). 218 Independent Policing Oversight Authority & another v Attorney General & 660 Others [2014] eKLR. 219 Alex Kiprotich (2015), “Kenya: Terror in Rift Valley as bandits mock State, murder 50,” Standard Digital (Nairobi), at http://www.standardmedia.co.ke/thecounties/article/2000161147/kenya-terror-in-rift-valley-as-bandits- mock-state-murder-50 (accessed July 5, 2016). 53
Further clashes erupted in Nadome in May 2016 in which at least 54 people were killed and over 350 families were left displaced.220
15.18.9 Wagalla Massacre in Kenya in 1985 and beyond This is reported to be one of the worst cases of human rights violation by the government against a civilian population in Kenya’s history. It occurred in February 1984 when the Moi government was attempting to disarm members of a clan called Degodia following previous clan conflicts in the region. Kenya Army soldiers who had been deployed tortured, maimed and killed civilians ruthlessly in the guise of conducting an operation.
According to reports, a total of over 5000 people were killed. The Government disputed the number and maintained that only 57 people were killed.221
The Wagalla massacre featured prominently in the substantive deliberations of the Truth Justice and Reconciliation Commission (TJRC). Moreover, the TJRC Chairperson Mr (Ambassador) Bethwel Kiplagat was confronted with his role in the massacre…. […..to elaborate; to cite]…..
15.18.10 Kisumu Massacre in Kenya in 1969 Jomo Kenyatta orchestrated the massacre of innocent Luo children and adults in Kisumu in October 25, 1969 where at least 100 people died and 100 others were injured. ES Atieno Odhiambo quotes him thus:222
“Now, I want, before opening this hospital, I want to say a few words and I will start with the Kiswahili proverb which states that “the thanks of a donkey are its hindkick.” We have come here to bring you luck, to bring a hospital which is for treating the citizens. And now there are some writhing little insects, little insect of KPU, who have dared to come here to speak dirty words, dirty words. I am very glad to be with my friend, Odinga, who is the leader of these people here. And I wish to say, if it were not for the respect I have for our friendship, Odinga. I have said that you get locked up today, so that we see who rules over these citizens, whether it is KANU, or some many little insects who rule over this country.”223
Kenyatta continued:
220 Samuel Karanja (2016), “54 killed in Turkana-East Pokot border attack, Kenya Red Cross says,” Daily Nation (Nairobi), at http://www.nation.co.ke/counties/54-killed-Turkana-East-Pokot-border-attack-Red-Cross/- /1107872/2707730/-/mtfl2az/-/index.html (accessed on July 5, 2016). 221 Abdi Latif Dahir (2014) “Kenya's Wagalla massacre 30 years later,” Aljazeera, 27/2/2014, at https://www.aljazeera.com/indepth/features/2014/02/kenya-wagalla-massacre-30-years-later- 201422682831165619.html (accessed 8/2/2019). 222 BS to annotate. 223 ES Atieno Odhiambo (2004) “Ethnic cleansing and civil society in Kenya 1969-1992,” Journal of Contemporary African Studies, 22:1, 29-42; Macharia Munene (1993) A.B. Assensoh (1998) African Political Leadership: Jomo Kenyatta, Kwame Nkrumah and Julius Nyerere, Malabar, Fla: Krieger Publishing Co. …indicating that Kenyatta spoke unprintable words……… 54
“For my part I do say this. If these people are dirty, if they bring about nonsense, we shall show them that Kenya has got its government. They dare not play around with us, and you Bwana Odinga as an individual, you know that I do not play around. I have left you free for a long time because you are my friend. Were it not so, you yourself know what I would have done. It is not your business to tell me where to throw you. I personally know where. Maybe you think I cannot throw you into detention in Manyani because you are my special friend.”
Kenyatta emphasized:
“And therefore today I am speaking in a very harsh voice, and while I am looking at you directly, I am telling you the truth in front of these people. Tell these people of yours to desist. If not, they are going to feel my full wrath. And me, I do not play around at all.”
He went on:
“They are chanting dume, dume – bull bull. Your mother’s cunts. These dume, dume.
“And me, I want to tell you Odinga while you are looking at me with your two eyes wide open, I have given my orders right now. These creeping insects of yours are to be crushed like flour. They are to be crushed like flour if they play with us. You over there, do not make noise there. I will come over there and crush you myself.”
At that point, Kenyatta I’s security officers shot at the crowd which comprised primary school pupils at the front.224
15.18.12 (Post) Election Violence in Kenya 2017, 2018, 2019, 2020 and beyond The 2017-2018 Post Election Violence (PEV) was mainly orchestrated by security officers. There were physical attacks and other provocation by some security agents leading to the killing of at least 40 people including the young Stephanie Moraa and Samantha Pendo in Kisumu, and many others killed in Mathare, Nairobi, Kisumu, Bondo, and other parts of Kenya.225
224 See also Akoko Akech (2019) “Kenyatta regime covered up Kisumu massacre,” Saturday Nation, Nairobi, November 11, 2019, at https://www.nation.co.ke/kenya/blogs-opinion/opinion/kenyatta-regime-covered-up-kisumu- massacre-219290 (accessed 17/8/2020). For a cheap revisionist perspective that cynically and predictably justifies the massacre and blame the (unarmed) victims, see Kamau Ngotho (2019) “When Kisumu went up in flames,” Saturday Nation, Nairobi, October 26, 2019, at https://www.nation.co.ke/kenya/news/politics/when-kisumu-town- went-up-in-flames-217256 (accessed 17/8/2020); Joseph Karimi (2013) “Witness recall the 1969 Kisumu massacre that marked Jomo Kenyatta’s visit,” Standard, Nairobi, October 29, 2013, at https://www.standardmedia.co.ke/security/article/2000096439/witness-recalls-the-1969-kisumu-massacre-that- marked-jomo-kenyatta-s-visit (accessed 17/8/2020). The Kisumu massacre and how it has been narrated, represented, misused, abused, and utilized in presidential and (electoral) power politics is analyzed in Chapters 11, 12 and 13 on President, Deputy President, Prime Minister and Deputy Prime Minister in Kenya and Africa. 225 See Kenya National Commission on Human Rights (KNCHR) (2017) “Mirage at Dusk: A Human Rights Account of the 2017 General Election,” at http://knchr.org/Portals/0/PressStatements/KNCHR%20PRESS%20STATEMENT- %20ELECTION%20REPORT%202017.pdf?ver=2017-10-09-114042-250 (accessed 10/11/2017); Kenya National Commission on Human Rights (KNCHR) (2017) “Status Update on Developing Post Election Human Rights Violations,” at http://knchr.org/Portals/0/PressStatements/Press%20statement- 55
The Kenya National Commission on Human Rights, Amnesty International and the Human Rights Watch reported that at least 40 people were killed been killed and at least 126 others were injured during the post-election ethnic cleansing witnessed from August 9 and that majority of these are Luos.226 The aggressors were mainly the police working with Mungiki, the Kikuyu ethnic militia.227 This partly explains the tribal profiling as well as verbal attacks by Kenyatta in that period. And in the system Kenyatta publicly adopted Mungiki, even renaming them Nairobi Business Community to give them an air of legitimacy and responsibility.
/15.18.13 Dusit Hotel, attack, Nairobi in 2019 On 15/1/2019, terrorist who were later linked to Al Shabaab attacked Dusit D2, a luxurious hotel in Nairobi and killed over 20 people and injuring a score of others. Over 700 people were reported to have been evacuated safely. The response by Kenya’s security personnel was better as it was seen to be more efficient and effectively coordinated, unlike in previous cases of terror attacks. There was a debate on whether the US had prior intelligence reports and whether the US had warned its citizens to avoid Dusit D2 Hotel.
15.18.14 Abduction of Cuban Doctors in Kenya in April 2019 Two Cuban doctors were abducted in Mandera Town on April 12, 2019 by individuals believed to be Al-Shabaab. These were (Dr Assel Herrera Correa, a general physician, and Dr Landy Rodriguez, a surgeon).228 As at April 17, 2019, the Government of Kenya was still trying to find ways of rescuing the doctors as key suspects were being investigated.229 In October 2020, it was reported that…..
%20Developing%20Post%20elections%20scenarios%202017%20.pdf?ver=2017-08-12-202548-347 (accessed 10/11/2017). See also Ben Sihanya Facebook discussion following the departure of 3 IEBC official in 2018. 226 Human Rights Watch (2017) “Kill Those Criminals: Security Forces Violations in Kenya’s August 2017 Elections,” at https://www.hrw.org/report/2017/10/15/kill-those-criminals/security-forces-violations-kenyas-august- 2017-elections (accessed 8/11/2017). Kegoro 5/11/17. [To Cite] 227 See Katharine Houreld (2017) “In edgy Kenyan slum, a rumour ends in fires and a death,” Reuters, 28/10/2017, at https://af.reuters.com/article/topNews/idAFKBN1CX0GE-OZATP (accessed 11/5/2018); Pambazuka News (2017) “Kenya: Fears of poll violence as Mungiki re-emerges,” at https://www.pambazuka.org/governance/kenya- fears-poll-violence-mungiki-re-emerges (accessed 8/5/2018). 228 Daily Nation (2020) “How Cuban experiment changed Kenya’s healthcare,” Daily Nation, Nairobi, 20/1/2020, at https://www.nation.co.ke/health/when-cubans-leave/3476990-5424908-cv5o0n/index.html (accessed April 6, 2020). 229 Manase Otsialo and Kennedy Kimanthi (2019) “Somali elders join mission to free abducted Cuban doctors,” Daily Nation, Nairobi, 17/4/2019, at https://www.nation.co.ke/news/Somali-elders-join-mission-to-free-Cuban- doctors/1056-5074976-lp1bai/ (accessed 17/4/2019). Cf. constitutional and related questions regarding the justification for bringing Cuban doctors; sending Kenyan doctors to Cuba. Treatment of Kenyan doctors, clinicians and nurses by the Kenyan Government. Treatment of Kenyan doctors in Cuba...See also, David Mwere (2019) “Senate probes state of Kenyan doctors in Cuba after one dies,” Daily Nation, 20/3/2019, at https://www.nation.co.ke/news/Senators-act-after-Kenyan-doctor-dies-Cuba/1056-5034460-cfvbk/index.html (accessed April 6, 2020). 56
15.19 Reforming Security and the Criminal Justice System in Kenya and Africa What is security and criminal justice system reform? What are the reform issues? Reform candidates? What is the reform methodology? Consider the Sihanya Mentoring methodology on reform….230
15.19.1 Constitutional reforms for security and good governance in Kenya… [to review content to develop a typology and to capture all key security issues]… What are the appropriate constitutional, policy, legislative and administrative reforms to security in Kenya and Africa? Article 4(2) of the Constitution states that Kenya is a multi-party democratic State founded on the national values and principles of governance spelt out in Article 10. Kenya cannot have proper governance unless the way in which campaigns and elections are carried out is moderated. Candidates should be tied to campaigning on grounds of policy and ideologies rather than tribal and self interest. This is to ensure inclusivity and an end to divisive elections.231 Most alliances are formed on tribal and strategic lines. The way in which politicians move from one party to another indicates that parties do not represent ideological groupings (like the Republicans and the Democrats) but that rather, they are a strategic means of amassing power and votes across the country. It is virtually impossible to have sound governance and objectively chosen leaders until Kenyans break off from the shackles of tribalism and demand substance from their leaders. If the citizenry doesn’t demand its right to be led well and express this desire through their choice of electoral candidates, then the country will continue to be led by myopic leaders whose poor governance will result in continued disregard for human rights. Constitutional reforms: Numerous reforms under the 2010 Constitution are awaiting implementation through appropriate legislative, policy and administrative measures. The constitutional reform debate from 2013, and especially after 2017 general elections needs to be clarified and addressed. The debates and proposals of the Building Bridges Initiative (BBI)
230 See Chapters 18 and other Chapters of CODRALKA 1, 2 & 3. IPILKA 1 & 2; Ben Sihanya (2021) Sihanya Mentoring LLD Thesis Guidelines, SM & Prof Ben Sihanya Advocates; Ben Sihanya (2021) Sihanya Mentoring Dissertation Guidelines, Sihanya Mentoring & Prof Ben Sihanya Advocates; Ben Sihanya (2021) Sihanya Mentoring LLM Research Project Paper and Thesis Guidelines, Sihanya Mentoring & Prof Ben Sihanya Advocates; Ben Sihanya (2021) Sihanya Mentoring LLB Research Proposal, Research Paper and Dissertation Guidelines, Sihanya Mentoring & Prof Ben Sihanya Advocates. 231 This is one of the notable issues identified as part of the key Building Bridges Initiative (BBI) recommendations. See Chapter 1 of the Building Bridges Initiative (BBI) report, 2019 and 2020 Reports, “A Report by the Presidential Taskforce on Building Bridges to Unity Advisory, October 2019.” 57
2019 and 2020 Reports, and the Constitution of Kenya (Amendment) Bill 2020 should also be taken into keen consideration.
15.19.2 Policy reforms on Security and Criminal Justice system in Kenya and Africa…. [To apply Sihanya Mentoring Methodology] Kenya has often discussed constitutional, legislative, regulatory, and administrative reforms without a sufficient plan or policy debate. The Bomas and BBI debates recognized this challenge. Policy debate should in future precede any reform debates. Some of the policy issues in security and the criminal justice system in Kenya and Africa are three pronged. First, recognizing the role of policy and its significance in security and criminal justice system. Auditing policies and policy proposals in security and criminal justice system.
Second, identifying and mapping key stakeholders in security and criminal justice system. Third, reviewing policy successes and failures, and reforms and implementation issues in security and criminal justice system in Kenya and Africa.
15.19.3 Legislative and Regulatory reforms on Security in Kenya and Africa…. [see above]……. Some of the pieces of legislation already enacted that directly or indirectly touch on security issues in presidential elections include: County Government Act, 2012 Elections Act, 2011 Independent Electoral and Boundaries Commission Act, 2011 Independent Policing Oversight Act, 2011 Inter-Governmental Relations Act, No 2 of 2012 Kenya Defence Forces Act, No 25 of 2012 Kenya National Commission on Human Rights Act, 2003 National Police Service Act, 2011 National Police Service Act, No 11A of 2011 National Police Service Commission Act, 2011 Office of the Director of Public Prosecutions Act, 2013 Political Parties Act, 2011 The following anticipated legislation are yet to be enacted: Legislation to restructure Provincial Administration: the laws, policies and presidential or executive orders re-enact but do not restructure the provincial administration as required under 58
section 17 of the Sixth Schedule The Sixth Schedule directs the Government to restructure the provincial administration to fit into the Kenyan devolved structure of governance.232 Legislation on County Government on Security….. Legislation on National and County government on Security…
15.19.4 Administrative Reforms in Kenya and Africa The core administrative reforms relate to the restructuring of the work of the following agencies or organs: (1) Cabinet Secretary for Interior (Internal Security) (2) Principal Secretary for Interior (Internal Security) (3) Kenya Police (4) Directorate of Criminal Investigation (formerly CID) (5) the Administration Police (AP) (6) National Intelligence Service (NIS) (7) the County and Regional Administration (formerly Provincial Administration)233 (i) Regional Commissioner (formerly part of the Provincial Commissioner’s domain), (ii) County Commissioner (formerly part of District Commissioner) (iii)Deputy County Commissioner (formerly District Officer DO) (iv) Chief (v) Assistant Chief (formerly Sub Chief, Sath) (vi) Mukuru (vii) Mlango (viii) Village Elder, Nyumba kumi elders, religious leaders among others. (8) The Independent Electoral and Boundaries Commission’s (IEBC’s) machinery on electoral security and criminal justice. (9) Private security companies.
232 Patrick Lang’at (2015) “Only titles changed in provincial system,” Daily Nation, Nairobi, 27/8/2015, at https://www.nation.co.ke/news/Constitution-Provincial-Commissioners-Governors/1056-2849094- bjd894/index.html (accessed April 6, 2020). 233 See section 17 of the 6th Schedule to the Constitution, National Government Coordination Act; Inter- governmental Relations Act, Presidential “Executive orders” on county administration and security (coordination)…See also CODRALKA I Chapters 11 and 12 on President and Prime Minister in Kenya and Africa. 59
(10) Institutional security officers and personnel. In October 2009, the Report of the National Task Force on Police Reforms was presented.234 The impetus for the appointment of the National Task Force on Police Reform arose mainly from the post-election violence in 2007-2008 and the various agreements that were thereafter struck between the two main contenders for political power, Mwai Kibaki’s (PNU and Raila Odinga’s ODM). Police reform was included under “Agenda Four” stemming from a strong feeling that the level of post-election violence and destruction would have been less intense if the police had carried out their duties more effectively. The Report contained far-reaching recommendations aimed at moving away from an overly centralized command structure by devolving powers and responsibilities to lower levels and by providing greater operational autonomy to commanders at provincial, district and station levels as well as making the appointment process of senior officers more transparent. Tighter controls and supervision mechanisms were recommended to curb corruption. A code of Ethics was also proposed to among other things, address conflict of interests involving police officers. A number of the recommendations in the report were also aimed at improving conditions of service and enhancing the provision of welfare benefits and greater security to police officers and their families. This would help motivate them to work as is expected of them.235 A name change of the Police forces was recommended in order to change the mindset of both the police and the public. Police culture and conduct should move away from reactive policing to proactive policing based on professional crime investigations and increased interaction with communities. A more effective internal complaints process for police officers was also recommended. It was also suggested that there should be finalization of the National Security Policy, and National Policing Policy which should have Community Policing as one of its central pillars in order to constitute a paradigm shift in policing.236 Yet another recommendation was aimed at the establishment of a statutory Police Reforms Implementation Commission whose function will be to coordinate, monitor and supervise the implementation of the reforms that were recommended by the report. The aim of doing so is to speed up the police reform implementation and enhance public confidence in the process.
234 Republic of Kenya (2009) “Report of the National Task Force on Police Reforms,” December 2009, at https://www.icc-cpi.int/RelatedRecords/CR2011_05851.PDF (accessed May 1, 2021). 235 Ibid. 236 Ibid. 60
15.19.5 Reforming criminal Justice in Kenya and Africa….. 1. What is criminal justice in Kenya and Africa? 2. How does it relate to criminology and penology? 3. What are the sources of criminal law, evidence, process? 4. Constitutional framework as a source of crimes and criminal process. 5. Constitution on criminal evidence; Constitution on criminal procedure: fair trial, habeas corpus ad subjiciendum (Articles 50, 49, 48, 47, 25...).
15.19.6 Summary of Findings, Conclusion and Recommendations on security administration in presidential elections in Kenya…. [to apply Sihanya Mentoring methodology]…. We adopted an Afro-Kenyanist methodology and approach in conceptualizing and problematizing security and criminal justice in Kenya and Africa. We also discussed some of the appropriate constitutional, policy, legislative and administrative reforms in Afro-Kenyan constitutional democracy, constitutional sociology and sustainable development, including the Building Bridges Initiative (BBI)…. Additionally, it is evident that Kenya’s ability to conduct free, fair and peaceful presidential elections is wanting. The 2013 and 2017 General elections which were done pursuant to the 2010 Constitution had presented opportunities for Kenya to turn over a new leaf and set a precedent for the rest of Africa. This did not happen. The main challenge of security administration during presidential elections seems to spring from the fact that incumbent(s) who control the country’s security machinery have power to use and misuse state security to their favor. The case is similar when an incumbent endorses their favorite presidential candidate….. [update this on security issues; timelines...]….
…. Let wisdom flow from and back to the Oracle’s Shrine and back in class and through books, articles, online, in the Oracle’s Shrine and in appropriate fora….
© Prof Ben Sihanya, JSD (Stanford), Revised 27/2/; 26/9/2013; 14/6/; 14/10/2014; 16/02/; 16/06/; 31/08/2015; 10/2/; 29/6/2016; 14/4/17; 10/4/2018; 8/2/; 12/3; 17/4; 3/9/2019; 4/9; 16/12/; 17/12/2019; 6/4/2020; 9/4/; 17/8/; 18/8/; 17/12/; 18/12/; 22/12/2020; 2/5/2021; 9/5/2021 email: [email protected]; [email protected] (use both) url: [email protected]
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