CHAPTER 12 ADMINISTERING AND REGULATING SECURITY AND CRIMINAL JUSTICE IN KENYA AND AFRICA This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Administering and regulating security and criminal justice in Kenya and Africa,” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 2: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya 12.1 Conceptualising Security and the Criminal Justice System in Kenya and Africa My overarching argument is that national or public security has a narrow and a broad meaning and significance which are equally important in the quest for constitutional democracy in Kenya and Africa.1 In this chapter, security and criminal justice is prolematised and conceptualized using the Afro-Kenyanist methodology and approach, with elaborate anecdotes and references to Kenyan and African scholarship. What are some of the key issues in the constitutional, legislative, policy and administrative debate in the context of the Building Bridges Initiative (BBI)…. How has security and the criminal justice system (CJS) been conceptualized, problematized, and contextualized in Kenya and Africa? Significantly, in Kenya and some African states, security is a human right. It is also a core function and obligation of the Executive and the President and/or Prime Minister. Art 238(1) of the Constitution defines national security thus: “National security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests.”2 And Article 29 guarantees security as a human right. Article 29 states: “Every person has the right to freedom and security of the person, which includes the right not to be— (a) deprived of freedom arbitrarily or without just cause; (b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58; (c) subjected to any form of violence from either public or private sources; (d) subjected to torture in any manner, whether physical or psychological; (e) subjected to corporal punishment; or (f) treated or punished in a cruel, inhuman or degrading manner.”3 1 Ben Sihanya (2012) “Security and the administration of presidential elections in Kenya: citizens’ rights, the quest for constitutional government,” Advocate, Magazine of the Law Society of Kenya, August 2012, 4-7; 41. Ben Sihanya (2013) “Administering security and integrity in Kenya’s presidential election 2013,” The Advocate, Magazine of the Law Society of Kenya (2013). 2 Cf. related terms: security, national security, public security, peace.... 1 Compare and contrast the definition of security under the repealed Preservation of Public Securities Act (PPSA), Cap 57. The definition under this repealed Act is seven-pronged and reads as follows: “The preservation of public security includes (a) the defence of the territory and people of Kenya; (b) the securing of fundamental rights and freedoms of the individual; (c) the securing of the safety of persons and property; (d) the prevention and suppression of rebellion, mutiny, violence, intimidation, disorder and crime, and unlawful attempts and conspiracies to overthrow the government or the constitution; (e) the maintenance of the administration of justice; (f) the provision of a sufficiency of the supplies and services essential to the life and well-being of the community their equitable distribution, and availability at fair prices; and (g) the provision of administrative and preventive measures during periods of actual or apprehensible national danger or calamity or in consequence of any disaster or destruction arising from natural sources.”4 Remarkably, the constitutional text and intendment or spirit seems to redefine security as a human right and to reverse coercion, brutality and corruption56 previously associated with security and administrative powers.7 During the enforcement of the curfew imposed to control the spread of coronavirus (COVID-19), there were reports of police brutality in most parts of Kenya, especially in Mombasa, Kwale among other regions in Kenya.8 For instance, the Washington Post reported one Kenyan citizen stating, “I didn’t even get close to the front queue by 7 O’clock, and that’s when the police came in with their sticks and whips and started chasing us and beating us.”9 3 To cite a variety of sources. 4 Cf H.W.O. Okoth Ogendo (1991) “Constitutions without constitutionalism: Reflections on an African Political Paradox,” in Issa G. Shivji (eds) (1991) State and Constitutionalism: African Debate on Democracy, South African Political Economy Series (SAPES) Trust, Harare, Zimbabwe, 17-18. The Personal Property Security Act (PPSA) was repealed in 1997 under the Inter Parties Parliamentary Group (IPPG). See Ben Sihanya Revised Teaching Notes on Constitutional Law and Comparative Constitutional Law by Ben Sihanya 2004-2020, Innovative Lawyering & Sihanya Mentoring. 5 United Nations Committee against Torture report, Concluding Observations on Kenya (2008)…. 6 Amnesty International (2013) Police Reform in Kenya: “A Drop in the Ocean,” Amnesty International Publications, United Kingdom. 7 Daily Nation (2020) “Uproar over police brutality during virus curfew in Kenya,” Nairobi, 28/3/2020, at https://www.nation.co.ke/counties/Uproar-greets-Kenya-coronavirus-curfew/1107872-5507340-12qc9qy/index.html (accessed April 3, 2020); Otsieno Namwaya (2020) “Kenya Police abuses could undermine Coronavirus fight,” Human Rights Watch, Africa, 31/3/2020 at https://www.hrw.org/news/2020/03/31/kenya-police-abuses-could- undermine-coronavirus-fight (accessed April 3, 2020). 8 Fadhili Fredrick (2020) “Kwale man “assaulted” by police enforcing curfew dies,” Daily Nation, Nairobi, April 3, 2020, at https://www.nation.co.ke/counties/kwale/Kwale-man-dies-after-being-assaulted-by-police--curfew-- /3444918-5512794-hlexcmz/index.html (accessed 9/4/2020). 9 Max Bearak & Rael Ombuor (2020) “Kenya’s coronavirus curfew begins with wave of police crackdowns,” Washington Post, Africa, 28/3/2020, at https://www.washingtonpost.com/world/africa/kenyas-coronavirus-curfew- 2 How is security conceptualized, problematized, and contextualized in the post 2010 Kenya and Africa? 12.2 Typology of security in Kenya and Africa As indicated in the repealed Preservation of Public Security Act (PPSA), security has a narrow and a broad meaning, as well as a compromised one between the two extremes. The following typology captures this perspective on security. First, security of the person (life and limb). Second, security of the work place. Third, security of property. Fourth, security of the home. And fifth, security in society generally. What principles undergird security and criminal justice system in Kenya and Africa? 12.3 Principles of National Security in Kenya and Africa Article 238(2) of the Constitution lays down the principles of national security. These include the following four. First, national security is subject to the authority of this Constitution and the Legislative assemblies: National Assembly, Senate and the 47 County Assemblies. Second, national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms. This qualifies the idea and practice that in the disciplined forces10 that obligates one to obey any command first and ask questions later.11 And that the order is more authoritative or higher than the issuer or, in Swahili, amri ni kubwa kuliko mwenye kuitoa [ to discuss lessons from the NYS pre University programme….] Third, in performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya. And fourth, recruitment by the national security organs should reflect the diversity of the Kenyan people in equitable proportions.12 All security is subject to civilian authority,13 hence the begins-with-wave-of-police-crackdowns/2020/03/28/358327aa-7064-11ea-a156-0048b62cdb51_story.html (accessed April 4, 2020). 10 To problematize and contextualize force vis-à-vis service; disciplined vis-à-vis armed forces…. 11 Or in Swahili Tii amri. Uliza swali baadaye. To cite [Hen Why Has Ha it…. On offence against discipline….] 12 Articles 10, 27, 73, 244, 246 and 249 Constitution of Kenya, 2010. See also Petition 309 of 2014, Independent Policing Oversight Authority & Another v. Attorney General & 660 others [2014] eKLR. The recruitment exercise was nullified for being ‘unconstitutional.’ 3 President as Commander in Chief (C-in-C), chair of the National Security Council (NSC). What of the role of the Governor at county level?14 The foregoing and related roles, principles and values question the increasing militarization and “securitization” of the civil service and public life under the Kenyatta 2 administration.15 [To discuss principles of the criminal justice system….] 12.4 Methodology on Security and the Criminal Justice System in Kenya andAfrica In the context of the emerging conceptualization, problematization and contextualization of security and criminal justice system in Kenya and Africa, what is the most appropriate methodology to study, analyse, operationalize, administer, implement reforms and again implement security and criminal justice system? There is at least three-pronged