Overhauling security system
By Ndungu Wainaina
Economist David Ndii’s provocative yet informative article, ‘Why Jubilee has become a byword for blunder’ recently published in a daily newspaper, identified institutional change, paradigm paralysis and leadership as serious challenges to the Jubilee Coalition government. “Jubilee seems totally befuddled by the challenge of institutional change brought about by the new Constitution,” he said.
This article focuses on Constitution’s institutional change of the security governance and public prosecutions. The Constitution fundamentally altered the old system of governance and institutions of governance. Yet, the Jubilee Coalition is far from ‘re-configuring’ this change and adapting accordingly. It operates on the basis of tinkering and trying to re-invent the old order.
Crime is a national threat with significant economic and social costs. However, transforming legal institutions is treated as “second order” after economic reform measures. This is shortsighted. The rule of law is the sine qua non for sustaining economic activity and upholding democracy itself.
Resolving systemic security concerns demand watershed national security strategy with multi-agency response, not patchy, hysterical and unsustainable affair. The Kenya government is deliberately unwilling to overhaul and transform the security organs despite sustained public demand.
The Constitution 2010 enshrined provisions on National Security underpinned by democratic norms and community-oriented policing. It shredded ‘orders from above’ colonial model of law enforcement. The National Police Service (NPS) is constitutionally established as a professional policing and law enforcement agency designed to apply modern-day technological and professional skills of scanning, analysis, assessment and responding effectively when addressing specific crime and disorder.
The NPS is mandated to be a crime intelligence and counter-intelligence driven agency. Unfortunately, it is still highly susceptible to the old model of ‘means over ends’ syndrome which the Constitution repealed.
The Constitution transformed security apparatus arrangement from being regime-oriented to citizen-oriented. Regrettably, the state bureaucrats and top police leadership are still stuck in the old model of staffing, management, organization and operating methods rather than on the substantive end priorities.
While improvements in staffing, organization and management remain important, it should be achieved within the context of a more direct concern with the outcome of law enforcement.
The NPS
The NPS must also develop a more systematic process for examining and addressing the security problems. This means identifying problems in more precision, researching, documenting response, assessing adequacy of existing authority and resources, and choosing responses correctly.
For effective crime combating, the National Intelligence Service (NIS), NPS and the military need to create a multi-agency criminal intelligence with a Directorate of Criminal Investigation (DCI) as the coordinating and implementing hub. They should prioritize the creation of the office of National Director of Security Intelligence which will act as an intelligence nerve center, coordinating and benefiting from the multi-agency intelligence and sourcing independent national strategic intelligence.
This office would set minimum standards of intelligence process: Planning, direction, information collection, processing, analysis, dissemination and re-evaluation. It would guarantee individual constitutional rights and civil liberties, increase accurate intelligence capability and set criminal intelligence training thresholds. This would ensure timely intelligence effectiveness, accountability and confidentiality.
This office would also facilitate the development and implementation of a national security strategy. The strategy should provide county-based community oriented law enforcement services with the tools and resources necessary for developing, gathering, accessing, receiving, and sharing intelligence at local levels.
State House on the other hand should have a highly independent and competent office of the National Security Policy Advisor to the President to receive and analyze overall intelligence reports and advise the President on the national internal and external strategic interests of the country.
The Directorate of Criminal Investigations (DCI), popularly known as ‘CID’ of the NPS is a law enforcement agency that deserves serious re-thinking, re-structuring and re-engineering into the modern day crime-buster. The DCI should be a powerful, capable and effective law enforcement agency with a two-way link to local police units and other security agencies.. The new DCI will build and maintain a comprehensive security picture based on in depth crime intelligence analysis and prioritization of the threats, harm and risks to the country from criminals.
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The new DCI will have the authority to undertake tasking and coordination of the police and other law enforcement agencies in crime matters. This would entail setting the overall operational strategy for tackling crime, ensuring appropriate action against criminals, stepping in to direct task where there are disputes about the nature of approach or ownership, and providing its own support.
The DCI will harness the latest crime busting technology. Through the multi-agency intelligence capabilities, expertise and assets, the DCI will comprise distinct specialized commands and in partnership with other law enforcement agencies.
The DCI will work very closely with office of the Director of Public Prosecutions (DPP). However internally, the Directorate will have a team of specialized legal experts, researchers in different fields and liaison teams in command centers including international cooperation. Its accountability chain will be the Director, office of Inspector General of National Police Service and Parliamentary Departmental Committee on Security.
Justice Maraga in the High Court of Kenya, Nakuru, Criminal case No.34 of 2008(Republic Vs. Stephen Kiprotich Letting &3 Others) on Kiambaa Church burning stated, “Our security agencies have to do their work and do it properly otherwise our people will be despondent and will take the law into their hands as is already happening in some parts of the country and the consequence of that is obvious: total anarchy”.
The second tier of securing the country is an effective Directorate of Public Prosecutions. In the same case referred above, Justice Maraga said this on prosecution, “Because of that, our law requires that for a conviction to result the prosecution must prove beyond reasonable doubt the case against the accused person. That is why many suspects are released. Courts therefore decide cases on evidence as by law required. If they fail to do that the critics will be the first ones to lambast them with allegations of incompetence”.
The ODPP is a critical cog in the chain of administration of justice. The holder of this office has security of tenure of eight years to ensure impartiality, credibility and independence in executing functions of the office. An effective public prosecution service, which is fearless and protective of its independence and impartiality as well as free of political control and direction, is the bulwark for human freedom, equal opportunity and equality.
In order to deliver effectively on its constitutional mandate, the ODPP requires sufficient financial resources, highly skilled professional personnel, and decentralized services to the county and cordial working partnership with other arms of administration of justice under the National Council of Administration of Justice.
The persistence allocation of limited financial resources to the ODPP by National Treasury and National Parliament demonstrates lack of understanding on the centrality of the ODPP in administration of justice and tackling crime. Reforming and resourcing judiciary without corresponding action on ODPP and NPS, the fight against crime will be lost.
As of July 2013, the ODPP was operating at 28.9 per cent of the required number of staff. It needs an additional 331 legal staff, 74 prosecution assistants and 74 non-legal staff. Prosecutors from the NPS are being replaced due to “lack of the professionalism and expertise to tackle cases comprehensively”.
The ODDP is expanding vide setting up County Public Prosecution Service to expedite case management and administration of justice. The ODPP should absolutely decline to receive orders from anybody else. A trial where the conclusion is pre-determined, dictated by politics, or directed by the government or other interests, does not uphold the rule of law. The courts are not forums for convenient means and the selective application of justice can never be justified or appropriate.
Final aspect is effective oversight. Effective oversight of the security organs and directorate of public prosecutions is key to their performance and value for public money.
While Kenya has a progressive Constitution, the country still lacks a strong practice or enforcement of system of checks and balances. Too often, public policy discourse has been interpreted in a ‘if you are not with us, you are against us’ fashion. It is clearly evident that Parliament, which is dominated by the ruling party with more than two-thirds of the seats, runs the risk of becoming too cozy to the Executive and its agencies.
This was well manifested in the shoddy and embarrassing House investigations into Westgate terror attack.
In a democracy, Parliament is a place for exchanging views and challenging the government’s actions and inactions. The Kenya Parliament seems so far happy to comply with the Executive. It is evident that the parliamentary oversight has been neither critical nor effective so far despite increased constitutional powers.
The decision by the House Committee on National Security to suspend the Safaricom-government contract of Sh14.5 Billion security surveillance system came as a surprise to many. However, the Committee took the proper steps in ensuring greater transparency and accountability of the security sector to the people and the law as well as guaranteeing value for taxpayers’ money and enforcing civilian democratic control of security organs.
Sensitive security concerns are often used as an excuse for secrecy, resulting in insufficient transparency in security and defence budgeting and procurement.
In real sense, the only sensitive information of the security organs is revealing their targets, methods and operational capabilities. However, the security organs must demonstrate clearly and in greater details how public publication of such information material would damage their work.
There has always been very weak oversight of security and defence matters by Parliament due to lack of capacity and/or interest by MPs, p inaccessibility of crucial information and lack of political will on the part of Executive. There is also an erroneous belief that security sector matters are a ‘no-go zone’. The consequence of this is restricted proper civilian control of the security organs and high level corruption leading to massive loss of tax payers’ money.
In accordance with the Constitution 2010, security organs just like civil service, Judiciary and DPP provide public services. They must be subjected to rigors of public scrutiny and accountability.
The sound financial management of a country’s security sector organs is key. Weak budgetary and procurement processes fail to provide economic or security benefits, merely consuming scarce resources needed to address basic needs of the population.
Lack of transparency in particular creates high vulnerability for corruption. The security organs’ expenditures and procurement requires high levels of transparency and accountability in budgeting and procuring processes.
There has to be accountability in the budget decision process, to Parliament and to citizens. The implementation of expenditure, especially procurement must be controlled by rigorous procedures and subject to civilian control. Also, auditing and parliamentary scrutiny of security organs’ spending with improper practices investigated and prosecuted is imperative.
Writer is Executive Director, International Center for Policy and Conflict: nwainaina@icpcafrica.org
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