September was the remembrance and memorialisation month of the Westgate attack that caused the loss of 67 lives. To start us off, and lest we forget, it was both fatal and reckless for government to block credible inquiries into failures in pre-empting and ending the attack. No lessons were actually leant. A few days later, it was business as usual – same government musical rhetoric with little or no change.
As a result of this indolence and incompetence by the State, months after Westgate, 147 students were murdered in Garissa University College in similar circumstances, besides several incidents in which scores lost lives in attacks on a bus and at a quarry.
Kenya’s security design and ideology has changed little post-independence. While the promulgation of the Constitution of Kenya 2010 ushered in a different security architecture, logic and philosophy, the current reactive security and law enforcement policies are ill defined and equipped, and incoherent in tackling 21st Century security challenges.
Deterring crime is the sole objective set for the National Police Service and other internal specialised law enforcement agencies. Serious and organised crime is a national threat. It requires a professional approach with credible, capable, impartial and effective law enforcement by security agencies. The response of the National Police Service response remains patchy, dysfunctional and ineffective.
Kenya is not under-policed. It is badly policed by corrupt, inept and impunity-ridden security and law enforcement personnel. The security and law enforcement agencies are trapped in regime policing of the colonial times, carried over by the subsequent post-independence governments, including the current Jubilee Government.
What the country has are regime-protection security agencies. The security agencies are agents of “rule”, not “governance”. Security agencies have been compromised to secure political interest rather than secure the people and the country. The appointment process of the leadership of security institutions is manipulated to award individuals who value politico-ethnic loyalty over professionalism, merit, competence, competitiveness and accountability to the people and to the Constitution.
Apart from lacking a national security strategy, Kenya has no solid integrated crime prevention and law enforcement policy. There are serious weaknesses in setting national security policy priorities, creating implementation plans and installing credible accountability systems, which raises the fundamental question: how does Parliament approve security and defence budget without corresponding policy and implementation plan respectively?
Zero policies, missing priorities
It is failures in internal security and law enforcement agencies to execute their constitutional mandate diligently, and inability of the political executive and national parliament to effectively hold them to account that has caused deterioration in insecurity in Kenya.
The problem is further exacerbated by the lack of integration, coherence and coordination of security structures, dysfunctional joint security and intelligence assessments by security institutions – both civilian and operational, non-existent accountability mechanisms in resources allocation and utilisation, deficits in oversight mechanisms, as well as grossly inappropriate emergency preparedness and response coordination.
There does not exist an organised cross-government security and crime prevention strategy, coordinated border policing, and strong national tasking and crime coordination agency. Instead, there are disjointed and compartmentalised units and responsibilities for policy and operational needs, and a tendency to operate in silos.
The objectives of a coherent and well-defined national security policy would be to consolidate the currently fragmented security sector policies and laws, by offering mechanisms for clear periodic reviews, providing new approaches to security, i.e. from traditional to human security, introducing democratic governance to the security sector, assisting to formulate and coordinate well thought-out responses to emerging internal and external security changes, and ensuring value for the money invested in the security sector.
It is imperative to stress that reforms in one sector of the justice system should be synchronised with reforms in other sectors to improve the entire criminal justice processes and increase access to security and justice for all.
Delays in pursuing serious, purposeful security reforms have allowed a network within the security agencies and other beneficiaries of the dysfunctional sector – especially in civil service, political and business circles – to re-entrench itself and use the growing threat of crime and terrorism to resist efforts to make security organs transparent and accountable. This has seen the emergence of security agencies as the cog wheels to crime.
Security sector reforms are not equal to appointing personnel and/or changing guard at the helm. Rather, it is about addressing the broader systemic structural and institutional, processes, systems and socio-economic political factors that hinder the satisfactory performance and delivery of security services by security institutions.
The Constitution provides the critical starting and reference point in transforming the security and law enforcement policy and institutions in Kenya. The Constitution does not respect traditional known practices. It sets new paradigms and operational procedures. It introduced major governance and institutional changes in Kenya. However, the political and Civil Service elite are finding it hard to adapt and adopt. The elite is drifting the country slowly back to the “pumpkin eating” time.
The Constitution gave the country sufficient legal framework to address, satisfactorily, security sector reforms and facilitate the ability of law enforcement agencies to tackle security challenges effectively within the confines of rule of law, and with impartiality, neutrality, competence, independence and professionalism; unfortunately, this is something that our political elite cannot seem to fathom.
The security sector was constitutionally and comprehensively restructured and reorganised in the new law. But the security organs –National Police Service, National Intelligence Service and Kenya Defence Forces – continue to operate in the old model, making them ineffective, vulnerable and irrelevant in tackling modern, sophisticated security challenges. The National Executive thrives in the presidential impunity of interfering with functional independence and merit-based appointments.
The presidency has consistently interfered with the implementation of pieces of legislation governing security agencies that flow from the Constitution – these legislations are scorned, disregarded and arbitrarily amended for political expediency. The country has sufficient laws to address satisfactorily security sector reforms and facilitate the ability of law enforcement agencies to tackle emerging security challenges.
Courts have delivered robust and groundbreaking decisions to clarify the roles and functions of the various institutions and offices in the security sector. But court decisions are never implemented but are conveniently circumvented.
The Constitution and laws governing security agencies passed in 2011 and 2012, which remain largely unimplemented, are purposive in seeking to divest the law enforcement agencies of regime-protection and of all colonial vestiges, and transform their focus from “rule” to “institutions of governance”. Secondly, the enabling legal frameworks enacted have professionalised and granted immunity to the security agencies from the Executive, such that professionals, rather than politicians, can and ought to control and give direction.
The Constitution further bestows Kenya with non-politicised and independent security agencies as crucial ingredients for good governance, accountability and high standards of professional performance. The government has to enforce, respect and implement this constitutional arrangement; it is the responsible and the right thing to do for a legitimate government.
The constitutional directive on the restructuring, reorganising and reforms in the Police Service seeks to achieve functional autonomy through security of tenure, streamlined appointment and transfer processes, and the creation of a “buffer body” agency –NPSC – between the police and the government. It enhanced police accountability both for organisational performance and individual misconduct. The tumour of an impunity-infested imperial presidency has exercised unanimous hostility to this constitutional scheme.
The constitution scheme of reforming the security sector puts in place mechanisms that address the following historical problems. First, it bestows on the police functional responsibility and autonomy while remaining under the supervision of the political executive and parliamentary oversight. Secondly, political control of police by the political executive is conditioned and kept within its legitimate bounds. Thirdly, the internal human resource management systems are fair, just and transparent. Finally, the security organs’ efficiencies are increased in terms of their core functions, and, most importantly, public complaints are addressed, and accountability enhanced.
Given the gravity of the structural, organisational and dysfunctional problem of Kenya national police service, the Constitution of Kenya 2010 provided far-reaching reform agenda, which are a prerequisite to achieving three main objectives. One is to enforce functional autonomy of security and law agencies for operational effectiveness and professionalism. Two is to strengthen civilian oversight accountability over security agencies. Three is to address the working and living conditions of the personnel and their dependants. Despite this clear constitutional framework, security and law enforcement agencies continue to suffer from deep-seated systemic crises of politicisation, corruption and criminalisation.
Predictably, national government has dragged its feet on implementing the comprehensive overhaul of the security and law enforcement agencies. It has left no stone unturned in its bid to retain control over the security agencies, which is inconsistent with constitutional provisions. The net effect of this executive impunity is that it has subjected the country to the vulnerability of organized, corruption and general insecurity.
Subordinate to civilian authority
The security budget for 2015-2016 is Sh241 billion. However, there is glaring dispropotionality between the money allocated to security organs and results. Without a coherent, well-defined, comprehensive security policy, with a clear implementation plan, no matter how much money the country pumps into the sector, there will be no tangible results without a major paradigm shift in its governance.
National security is subject to the authority of the Constitution and Parliament. Security agencies are subordinate to civilian authority. The Defence Council has constitutional powers to exercise supervisory control over the security organs. Neither the Internal Security Department not Department of Defence has provided the country with its policy and its implementation.
The core mandate of the ministry of Interior is to provide a national Internal Security Policy. The National Parliament has the responsibility of scrutinising the policy and its implementation plan to ascertain its veracity and soundness. The National State Ministry has never provided such a policy; it only keeps asking for money.
The country does not need a constitutional amendment to create a decentralised community-oriented policing service (not to be confused with community policing). A community-oriented policing service demands first the existence of a credible, impartial, accountable and trustworthy national police service, which does not exist now.
The ministry of Interior and the Council of Governors should trigger Articles 187 and 189 (Transfer of functions and powers between levels of governments) of the Constitution of Kenya 2010 to create a mechanism and policy that would address three components: first, a separate general law and order maintenance from crime detection, prevention and investigations; second, creation of a national crime and counter crime intelligence agency; finally, the transfer of some policing and law enforcement functions to the county governments. The new arrangement will ensure the functional autonomy and operational independence of police as provided for by the Constitution, while enhancing coordination, accountability and optimal utilisation of assigned resources.
The Nairobi-controlled National Police Service is, in my opinion, irrelevant. It has been a perpetual failure. The NPS should be restructured into specialised units with specific mandates and command for improved effectiveness.
At the national level, the country should establish a professional credible, impartial and legitimate, well-resourced crime agency to tackle inter-county, national and international crimes. The current Directorate of Criminal Investigation has proven to be unprofessional, partisan, incompetent and highly compromised. How, for instance, has it failed to unmask and prosecute the perpetrators of the Tatu City scandal – despite the enormity of evidence against well-known individuals?
The Directorate of Criminal Investigations, which is part of National Police Service, should be thoroughly reformed, restructured and reorganised into a fully-fledged, well resourced autonomous operational crime and counter intelligence detection, prevention and investigations national law enforcement agency, with special operational centres with the capabilities and capacity to conducting highly professional crime assignments.
The restructured national crime and law enforcement agency would be the crime investigation conducting hub, to produce and maintain a comprehensive national threat picture for serious, organised and complex crimes, which all other domestic security agencies will tap and benefit from. This would not only improve crime investigation and improve coordination and operational effectiveness; it would enforce clear accountability avenues in tackling organised and transnational crime such as money laundering, terrorism, poaching, economic and financial malpractices, drug and human trafficking and such other crimes of national and international in nature.
County Police Service
Further, the ministry of Interior, Council of Governors and National Police Service need to invoke Article 187 of the Constitution of Kenya to create an elaborate County Police Service with police posts and stations corresponding to the structures of the devolved units.
The county policing and law enforcement police service will be responsible for public safety and security within the County. It would deal with crime prevention, law enforcement, maintenance of order and any other crime not under the national crime agency jurisdiction. This ensures the county police service is able to effectively address crime informed by local dynamics and conditions with high degree of accountability. It would enforce democratic policing and law enforcement, where communities and local authorities have a greater say and role.
The operational command and control of County Police Service would be the responsibility of the County Police Officer appointed competitively and on merit by National Police Service Commission. S/he would be accountable to the office of Inspector-General, National Police Service Commission and County Policing Authority. This would remove interference with the professional work of the National Police Service and provide clear reporting accountability channels.
There is urgent need to change the security sector governance oversight regime as well. Genuine accountability by security agencies to democratic civilian authorities as provided in the Constitution has not emerged yet. The agencies have remained opaque boxes with opaque decision-making processes, controlled by networks of officers who have, for years, resisted meaningful reforms, financial transparency, and civilian oversight and accountability mechanisms. Too, there is need for proper benchmarking and oversight paradigm shifts if the operational side of the security and law enforcement systems is to deliver the desired results
A new strategy of strengthening and retooling the civilian institutions to thoroughly scrutinise, monitor and oversee the work of the NPS and other security agencies is paramount now more than ever. Further, building capacity for civilian security bodies and other strategic stakeholders, like the internal security departments, parliamentary departmental committees on security, civil society, private sector and media is crucial to guarantee comprehensive operational, budgetary, procurement and oversight, and enforce transparency and accountability mechanisms over security and law enforcement agencies.
Finally, NPSC should be professionally reconstituted and fully resourced to enable it effectively perform its constitutional policy mandate of human resource management and oversight.^