PRESS STATEMENT

May 5, 2014
Why President Must Reject Retrogressive Amendments to National Police Service
Commission Act 2011 Passed by National Assembly
1. The sanctity of the independence of the Constitution was adulterated and its
architecture and design so heavily mutilated that it lost its identity and form.
2. Post-independence constitutional changes and legal amendments undermined and
weakened key institutions including the Judiciary, the Police, the Electoral System
and Parliament while strengthening the Executive. The changes resulted in the
centralization and monopolization of power by the executive and minimized checks
and balances on the executive by other institutions.
3. The Constitution of Kenya, 2012 provides for elaborate checks and balances
mechanisms that will ensure efficient, accountable and equitable governance of the
political and economic affairs of the state at all levels.
4. Constitution enshrines a principle of shared power between and among Institutions
across the board.
5. Constitution guaranteed legal and independence of the National Police Service
removing administrative and bureaucratic control by the civil service and political
class. It strategically and purposefully created National Police Service Commission
and gave it functions are to lay down policing policy, indicate performance criteria
and keep police performance, challenges and its needs under review. The
Commission is a means of conditioning and defining the powers of the political
executive and police and clarifying each ones sphere of responsibility and
accountability ensuring bipartisanship and shield policing from changes in political
power by keeping policies more or less constant.
6. Constitution granted immunity to the National Police Service from Executive
and politicians control and divested the National Police Service Act, 2011 of all
colonial vestiges and transformed the focus of National Police Service focus from
rule to democratic governance. Constitution created a completely new policing
and law enforcement system. The new Police System is distinctly detached from
administration. An elaborate policing and law enforcement system is supposed to be
established corresponding with devolved system of governance units set up by
County Government. The System is directly accountable and answerable to the
Inspector General of National Police Service. Remnants of Provincial Administration
are not part of security organs.
7. The political class and top civil service operatives, especially in State Ministry of
Internal Security are less willing to loosen grip on police allowing the Service to be
fully transformed, do its work independently and deliver policing service
professionally. This anti-people and Constitution group of individuals is determined
to reverse the clock taking the National Police Service and the country back to Egypt.
8. Archaic and colonial police laws dating back to 1926 have governed Kenya police
until 2011 when new National Police Service Act was enacted flowing from the
Constitution. There has been almost 30 years of debate on policing and reform, with
commission after commission submitting reports and recommendations to
governments. Each report has gone unimplemented.
9. The National Police Service Act 2011 is a very transformative law. It removes
ambiguities, overlaps, duplications and contradictions in the National Police Service
including command structure and accountability. The law has created new Police
structure, which abolishes six ranks, including that of the Commissioner, SDCP1,
SDCP2, Deputy Commissioner of Police, Senior Assistant Commissioner of Police
doing nothing part from clogging and bureaucratizing police functions. About 1,200
officers had held these posts across all police units. This group of officers with tacit
support of operatives in State Ministry of Internal Security has been blocking Police
Reforms. We urge President to remove all officials who been in this Ministry
including the Principal Secretary.
10. Amendments passed by National Assembly to National Police Service Commission
Act 2011 are ill advised and unconstitutional. It is strange National Assembly passed
amendments without proper understanding of the philosophy and intention of the
Constitution, the history of policing in the country and what the Constitution was
curing. The passed amendments reverse the clock and violate the Constitution on
the legal and institutional independence of the National Police Service by purporting
to oust and or weaken the following:
I. Immunity to the National Police Service from Executive and politicians
control. A constitutional guarantee that bar state government from
exercising unwarranted influence and or pressure on the national Police
Service
II. Divest of the National Police Service Act 2011 Act of all colonial vestiges and
transforming its focus from rule to governance.
III. Process that ensure the Inspector General of National Police Service and
other officers are appointed through merit based transparent and
competitive process
IV. Separate the investigation and law and order functions of the National Police
Service
V. Role of National Police Service Commission in overseeing police functioning
and deciding transfers, appointments , promotions and other service related
matters of police officers
11. Transformative Police Reforms provided in the Constitution will free up the National
Police Service Police from the whims of politicians and executive, and lead to better
policing. Executive control over the police has been a festering wound for far too
long.
12. The constitutionally inspired reforms are supposed to achieve functional autonomy
for the National Police Service (through security of tenure, streamlined appointment
and transfer processes, and the creation of a "buffer body" between the police and
the government) and enhanced police accountability (both for organizational
performance and individual misconduct.)
13. Judiciary in exercising its powers of complete justice and judicial oversight is
empowered to issue directions regarding a Police reforms in order to safeguard the
constitutional independence of the National Police Service as key cog in criminal
justice system.
14. Judicial review of the Amendments and other police reforms related matters,
including addressing the most glaring gaps and bad practice in the functioning of the
police, will be necessary should the President assent to the perfidious amendments.
15. Government has never been unequivocal on police reforms. It keeps dragging its feet
on implementing the constitutionally enshrined police reforms. It is expectation of
every Kenyan that the President will live faithfully to his pledge of supporting
transformative Police Reforms and reject those backward amendments passed by
National Assembly. .


Signed By

Ndungu Wainaina
Executive Director