“The signing
of the Kenya National Dialogue and Reconciliation Accord following the
calamitous post-election violence set the country on a much desired path
of constitutional, institutional and legal reform..” Chrisphine
Owiye
The Government is a legal institution envisioned by the Constitution
as the universal provider of security and solace to the citizenry. With a
highly extensive structure, it is hoped that the Government houses the
requisite infrastructure, facilities and professional wealth to not only secure
the borders of the country but also offer intra-country comfort to citizens.
Defence
Forces
It
is worth noting that the reforms hitherto witnessed in the arena of security in
Kenya did not come easily. The post-election violence in 2007/2008 provided an
opportunity to relook the country’s security structure and abilities. Lives were
lost and property worth hundreds of millions destroyed. Displacement of
humanity in monumental proportions was witnessed all over. The signing of the
Kenya National Dialogue and Reconciliation Accord following the calamitous post-election
violence set the country on a much desired path of constitutional,
institutional and legal reform.
The
constitutional review process, which had witnessed several false starts,
suddenly got a near all embrace culminating into the enactment and the
promulgation of the Constitution in 2010. Instructively, the security sector
benefitted remarkably under the new constitutional dispensation.
To
begin with, Article 241 of the Constitution established the Kenya Defence
Forces (KDF) which encompasses the Kenya Army, the Kenya Airforce and the Kenya
Navy. The KDF is constitutionally responsible for the overall defense and
protection of the sovereignity and territorial integrity the country.
At
the apex is the defence council responsible for the overall policy, control and
supervision of the forces. The membership comprises the Cabinet Secretary for
the time being responsible for defence who presides as Chairperson, the Chief
of the KDF, and the Principal Secretary in the Ministry responsible for
defence.The
KDF Act seeks to statutorily align the defence forces to the spirit and letter
of the Constitution. Section 3 of its guiding principles requires the defence
forces to respect and uphold the Bill of Rights and the values and principles
enshrined in Article 10 of the Constitution.
Intelligence
Service
The
National Intelligence Service (NIS) on the other hand previously known as the
National Security Intelligence Service morphed from the then dreaded department
of National Police Force code name Special Branch and established in 1952 to
provide intelligence to the British administration.
After
independence in 1963, the special branch was transformed into the directorate
of security intelligence and subsequently in 1999; the NIS was born following the
enactment of the National Security Intelligence Service Act. The Constitution
establishes the NIS captained by the Director General who is appointed by the President
with approval of the National Assembly.
According
to Article 242 of the Constitution, the chief mandate of the Service is to
provide security intelligence and counter intelligence to enhance national NIS has been in the spotlight over giving and sharing of intelligence information on potential
terrorist attacks. Probably time is nigh that we relooked the entire
establishment, structure and systems of the NIS with a view of firming it up
for a more effective and efficient discharge of its mandate
Police
Service
The
Kenya Police Service (KPS) has also travelled a tumultuous journey. The events
following the post-election violence strengthened the push for police reforms. The
Commission of Inquiry into Post-Election Violence (the Waki Commission) made a
raft of recommendations including the initiation of reforms in the police service
operations and creation of an effective system of police accountability.
A
subsequent United Nations special rapporteur report did similarly accuse the
police of extra judicial executions hence pressed the need for an overhaul and
streamlining of the existing policing rank and file.The
Government set up a task force headed by Judge Ransley to deal with the same
and following its report, the Police Reform Implementation Committee was set up
to oversee the implementation of the task force recommendations.
As a
consequence, the National Police Service Act was enacted effectively merging
the Kenya Police and the Administration Police into one single establishment
under the command of the Inspector General of Police. Under the new dispensation,
the capacity of the criminal investigations was enhanced in terms of funding
and management.
Executive
Interference
In a
rather progressive bid to offer civilian tab over police action, the National
Police Service Commission Act was enacted. The Act establishes a civilian board
tasked with the onerous responsibility of overseeing the recruitment and
appointment of police officers, reviewing standards and qualifications and
receipt of complaints from members of the public. Since its establishment, the
National Police Service Commission has faced a myriad of challenges such as
lack of quorum in its sittings and threats to the life of the chairperson. The
Commission has also encountered interference from the Executive for instance on
26th march 2015, the president in the state of the nation address faulted the
ongoing police vetting process presided over by the commission as slow,
demoralizing and allegedly as having a negative impact on the overall reform agenda
in the police service.
Oversight
Authority
The
Independent Policing Oversight Act No.35 of 2011 on its part establishes the
Independent Oversight Authority purposed to hold police accountable to the public
in the performance of their functions. The civilian Authority was established
to give effect to the provisions of Article 244 of the Constitution that
requires the Kenya Police Service to strive for professionalism and discipline
within its membership.
Another
key role of the Authority is to ensure independent oversight of the handling of
complaints by the Police Service. The most celebrated intervention by the
Authority is High Court Petition No. 390 of 2014 in which the Authority
successfully obtained orders quashing the 2014 police recruitment process on
the premise that it was marred by allegations of corruption, tribalism,
nepotism, professional malpractice and kindred integrity issues.
National
Government
The
Fourth Schedule of the Constitution provides that functions of the National
Government include national defence and police services. This Constitutional
provision limits matters security chiefly to the National Government. However,
Article 189 of the Constitution makes handy provision for the co-operation between
National and County Governments through support, exchange of information,
coordination of policies and administration and enhancement of capacity.
The
two levels of Government may set up joint committees and authorities in the
performance of their functions in terms of the provisions of Article 189(2) of
the Constitution. Matters security under the County Governments is legally
cushioned by the County Government Act.
A
prime objective of county planning is to inter alia make reservations for
public security thus in planning activities, the County Government must Willy-
nilly make
provision
for County security. The provision of security vehicles by the County Governments
of Machakos and Mombasa to the police as part of measures in boosting security
infrastructure is an impressive showcase of this duty. In terms of Section 41 of
the National Police Service Act, community policing is a flagship
responsibility. The County Policing Authority chaired by Governors and with membership
of persons appointed by the Inspector General, elected members nominated by the
respective County Assembly and representatives of the community is a
significant display of the fundamental essence of community policing at the
county level.
By
and large matters security are significantly addressed both in Statute and in
the Constitution. It is therefore, prime that the various actors in the realm
of security act in consort and with reliable consultations to enable us realize
a secure and peaceful motherland- Kenya.
Mr.
Owiye is the Manager in charge of Investigation and Prosecution at the Independent
Electoral and Boundaries Commission (IEBC)
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