The Ping Pong of Police Reforms in Kenya By Godwin Murunga
Keen observers of the Kenyan security sector will have noticed the willingness of the police to publicly rebut accusations directed at them. This would be refreshing if the content of the rebuttals portray an understanding of the challenges facing police reforms and help change the image of the force. But they have been couched in unrewarding arrogance that is also aimed at casting aspersions at perceived enemies of the force.
This reaction has been most vociferous in relation to reports of extrajudicial killings committed by the police. The police have targeted organisations within civil society. Their aim is to turn this discussion into a referendum on these organisations. At the moment, it is the report by Prof. Philip Alston, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, that is receiving such flak.
Until their admission at the UN meeting in Geneva last week, the Kenyan government had sought to discredit Alston, his methodology and recommendations. Police Spokesman, Eric Kiraithe, upped the ante last week in the Monday edition of the Standard newspaper when he referred to Alston's report as a ‘igoted activist' (see http://www.eastandard.net/InsidePage.php?id=1144015651&catid=15&a=1) and argued that Alston did not have the time and capacity to convincingly investigate the killings. Alston had recommended the sacking of the Police Commissioner and Attorney General citing the latter as ‘he embodiment in Kenya of the phenomenon of impunity.'
What is astounding is not the contemptuous tone of Kiraithe's piece but the assumption that few, if any, Kenyans have read the reports on the killings and Alston's press statement to make independent judgement on it. Any cursory review of these documents shows the diversionary intent in Kiraithe'swriting and exposes the frail basis of his argument.
Allow me to operate within Kiraithe's narrow frame to illustrate my argument. Kiraithe argues that Alston had only ten days in Kenya and could not fully investigate the alleged killings. He concludes that Alston was driven by a one-sided anti-police agenda. For Kiraithe, Alston came to Kenya ‘to fulfil a mandatory requirement' to confirm predetermined instructions about the police. Thus, he concludes, Alston's report is a fabricated and plagiarised document ‘devoid of even an iota of fact.'
Kiraithe reserves the greatest scorn for organisations within civil society that, he says, lack the capacity and qualification to conduct any investigation. For him, such capacity must meet the threshold of providing evidence that can sustain a prosecution. Additionally, Kiraithe alleges that the reports upon which Alston's findings are based contain only ‘wild allegations.' He questions why Alston included issues on Mt. Elgon and the post-election violence that, to him, are obviously out of Alston's mandate.
Note that Kiraithe makes no reference to detailed evidence of extrajudicial killings unearthed in a Kenya National Human Rights Commission report. This report provides detailed reference on sources of information including pictures of decomposing bodies, actual dates and descriptions of police cars allegedly used in these operations. The names of police ‘officers' used in the operations are also cited in an attached report of a whistleblower (see http://www.knchr.org/dmdocuments/UN%20submission.pdf). With all these in the reports, is it surprising that Kiraithe refuses to see ‘evidence on alleged killings by police?'
Kiraithe has an unrealistic threshold for civil society groups collecting evidence. Though he insists on evidence that can sustain a prosecution, it is obvious that these organisations can only trigger the interest of the police to investigate further and prosecute. Thus, insisting on this threshold aims to prevent investigation. It is only the government that has the capacity, indeed, the legal obligation to investigate and prosecute. That obligation rests with the police and is no transferrable.
If Kiraithe was serious about it, the police ought to confirm if the pictures of the decomposing bodies are real or if they constitute his previous claim that such evidence is the Rambo-style collage? If the bodies are real, have the police investigated to ascertain the cause of the deaths? Is it not the responsibility of the police to investigate and account for any deaths in the country that comes to their notice? We hope that further police investigations will acquit the force and lay responsibility on the actual culprits.
It is a non-issue that Alston was in Kenya for only ten days. On the first page of his Press statement, Alston says that ‘my work began several months ago as I analysed all the available government, parliamentary, police, and civil society reports on issues related to unlawful killings.' Kiraithe argues that Alston spent only one hour with the police and was always in a hurry to leave for another meeting. This in spite of the fact that he ‘was granted total access' to the police. Yet, Alston writes that he ‘was stonewalled at each step by the Police Commissioner and those under his command.'
Take your pick on who to believe. But Kenyans need to remember that others, like the Waki Commission, also found the police uncooperative and accused the Force of ‘misplaced arrogance.' If I cannot believe Kiraithe, it is only because he is too eager to defend the indefensible.
Finally, no human rights group has argued that Mungiki should go unpunished as Kirathe seeks to portray in his writing. Rather, they are saying that there is no logic in the police apprehending suspects and killing them at point blank range. The Kenya National Commission on Human Rights has enormous evidence that most of those killed were killed at close range and in circumstances that suggest they had either been apprehended or were in way capable of threatening the lives of the officers apprehending them.
But one needs to operate outside Kiraithe's narrow terms of debate to better illuminate what ails the police force and how police reforms can be successfully launched to avoid the embarrassing spectacle of a UN Special Rapporteur coming back to lecture us. Such a framework is needed to isolate law-abiding and service-oriented police from the others whose presence has irreparably dented the image of the force.
The history and institutional location of the police force is its biggest problem. The force is a product of an imperial history with a state that defined police functions in oppressive, masculinist and violent terms. Tied to the colonial state, the police have been captive to, and continued to function on, a delegitimized and authoritarian state logic. Force and violence is the language that such a state logic knows and uses against its citizens. The colonial and neo-colonial state is dominated by racially and class-defined political actors who have no interest in and will work to prevent the empowerment of the majority of citizens. Their modus operandi is policing by coercion.
In colonial times, the police played a significant role in subjugating ‘natives' and extracting ‘unquestioning' obedience from them. They facilitated the oppression and abuse of Africans. In this role, the police served the political and economic interests of the minority settler population in colonial Kenya. In the 1950s, the main complaint against the police and the allied Home Guards was against their use of excessive force and counter-terror in fighting Mau Mau. Innocent Kenyans were murdered in cold blood on suspicion of being Mau Mau adherents.
When demands for police reforms began to mount and the colonial police responded, the main stumbling block to the realisation of reforms was the state and settlers. It is clear that a police force that sought legitimacy within the larger citizenry threatened this minority population because settlers and administrators were used to breaking the law with impunity.
In 1954, a new police commissioner, Arthur Young, successfully prosecuted Home Guards who had murdered innocent people on suspicion of being Mau Mau. Governor Evelyn Baring pardoned them citing the need to maintain morale among Home Guards in fighting Mau Mau. Young resigned after having served as commissioner for only nine months. This story of state control of the police and resignations has repeated itself in Kenya's history for years now.
In Independent Kenya, for instance, the police force continues to reflect the character of the political class dominating the authoritarian state. We witnessed the Africanisation of colonialism and the political class dominating the state continue to expect and demand compliant protection from the police force. The force remains firmly tied to serving the interests of this class. The fact that we retain a police force rather than a police service shows why it has no legitimacy in the eyes of a majority of Kenyans.
Mzee Jomo Kenyatta perpetuated the reliance on force to ensure compliance, silence dissent and perpetuate his dominance over politics. His primary target, as Tamarkin has argued, was to gain control over ‘all instruments of coercion in Kenya' and to destroy all potential foci of organized opposition. He assumed that this was the guarantor of political stability. But since his tenure as president was an exercise in regime building, all that the police have done so far is to serve the interests of the class around Kenyatta.
Like Kenyatta, Moi also assumed that his control over the armed forces was a sure way of suppressing dissent, preventing organized opposition and ensuring obedience and compliance. Many Kenyans joined together irrespective of ethnic affiliation and by the 1990s, the demand for organized opposition was unstoppable. Moi grudgingly acceded to multi-party politics. But in the process of demanding such freedoms, the police force has been diverted from its core duty of providing security to the generality of Kenyans to protect and serve the interests of the political class and ‘bludgeon critics into submission.' This is the class that commits the most crimes and that benefit from impunity.
This political class shares characteristics and interests with the top echelons of the police force. Both are complicit in abetting lawlessness and perpetuating impunity. They have consequently abdicated from their responsibility to Kenyans and especially the lower cadres of the constabulary. While the top people at Vigilance House, police headquarters enjoy huge official and unofficial allowances and comparatively lavish lives, the lower police person is condemned to crowded, unhygienic living conditions, poor remuneration, and unacceptable working conditions.
There is a myth of a united force which we must explode. The myth portrays a police force united in its pursuit of lawlessness and disorder and benefitting equally from corruption. We need to expose the machinations that link the top echelons of the force to the immoral political class bankrupting Kenya. The two share a lot in common and it is no surprise that Kiraithe would give the same excuse in the newspaper that Prof. George Saitoti gave at a rally regarding the Alston report. We have to show that it is the police command structure that prevents us from seeing the distinction between the top and lower echelons of the force.
The way forward to police reforms is anticipated in proposed Oversight laws and in The Kenya Police Service Strategic Plan, 2003-2007, Draft 2. But the laws do not touch on the need to reform the state as a first step to reforming the police. One would expect that the demand for an independent police force proposed in the Strategic Plan would elicit elated response from the force. This, I assume, would allow the force to operate independent of a state that has historically blocked reforms. But this is not happening with the energy one expects from the top leadership of the force.
The main struggle should focus on breaking the subordination of a reformed police service to the state. The state must fund the police but the police should account to Kenyans. After all, it is Kenyans who pay the taxes that fund the security sector.
This independence should proceed alongside initiatives to change the policing objective from coercion to consent. We need to entrench a professional cadre in the leadership of the police who appreciate and have ‘knowledge and experience in matters of security, human rights and public affairs.' Unless we change the character of the state, and divorce it from the police force, the prospects for police reforms will always be frustrated by the political class. It is in the interest of these characters within the state to play ping pong with police reforms in order to ultimately prevent the emergence of a professional force that holds them to account. So far, they have succeeded. That is why Eric Kiraithe feels confident issuing rebuttals that do not help the image of the police.
Godwin R. Murunga
Death Squads: Kenya Plots To Oust Alston By Bernard Namunane and Alphonse Shiundu
From The Daily Nation June 8, 2009
A report on Kenyan police killings presented at a United Nations Conference in Geneva has sparked a controversy which might result in the censure of Rapportuer Philip Alston.
Prof Alston last week presented the report of his investigation into allegations of illegal police executions in Kenya in which he criticised the government and called for the resignation of Attorney-General Amos Wako and the sacking of police commissioner Maj Gen Hussein Ali.
Although the Kenyan delegation denies lobbying against Prof Alston, its complaints, that the UN Rapportuer did not cross-check the facts in his report and that he did not sufficiently involve the government in its preparation, appear to have caught the attention of delegations from Africa and the non-aligned movement.
Destabilise Kenya
In his speech to the UN Human Rights Council, Justice minister Mutula Kilonzo accused Prof Alston of seeking to "destabilise Kenya by trying to divide the coalition government" and claimed that the UN official's report was "biased".
The African Group, a team of delegations from Africa, and the non-aligned movement, appear to believe that UN Rapportuer are conducting investigations as if there was one set of rules for poor countries and another for the rest of the world, according to a member of the Kenyan technical delegation who requested not to be named because he is not authorised to comment.
Influential countries such as Malaysia, the official said, were among those which felt that the UN investigators were not respecting the rights of poor member states and want all special Rapportuer censored.
The Kenyan delegation initially went to Geneva with every intention of attacking Prof Alston, but a compromise between the Orange Democratic Movement and the Party of National Unity saw them put up a more balanced defence in which the government acknowledged illegal killings by police officers and a promise to protect human rights defenders.
Kenya was represented at the meeting by Mr Kilonzo, his Lands colleague James Orengo, George Saitoti of Internal Security, East African Cooperation minister Amason Kingi and Mr Wako. Mr Wako and the ministers have since left but the technical delegation is still attending the conference.
But the feeling among some members of the technical delegation appears to be that Prof Alston "got off lightly" and that the human rights official meddled in internal security matters which are "not discussable" at the conference and "got sucked into national politics".
Initially, the government response was intended to criticise Prof Alston by saying: "The Government expresses grave concern regarding the allegations contained in the report by the Special Rapportuer. His questioning of the very basis of the Kenyan state and in particular its institutions is totally unacceptable, and impinges on Kenya's sovereign rights."
But after the compromise, Prof Saitoti's remarks were, in comparison, mild and did not attack the UN official.
The lobbying seems to have started after the Kenyan official response and might culminate, some members of the Kenyan delegation hoped, in a formal censure or a "withdrawal of support" for Prof Alston by the Africa Group and the NAM.
On Sunday, Mr Wako, who is in London pursuing the Anglo Leasing case, denied lobbying the African Group to push for a resolution to condemning Prof Alston.
"No. I cannot recollect lobbying any group in Geneva against Prof Alston," he said by the phone.
A different member of the Kenyan delegation told the Nation that the non-aligned movement members of the council from Asia, Africa and South America, wanted the UNHRC to assert its authority on rapporteurs to ensure that they did not violate the rights of member states from Africa.
Philippines, Sri Lanka, Afghanistan and Brazil have faced similar situations as Kenya with UN rapporteurs who were sent to investigate police brutality.
Firm recommendation
The groups, it was understood, wondered why the rapporteurs kept within UN rules when investigating human rights issues in rich countries but not when sent to poor countries.
Of particular concern to the group was Prof Alston's firm recommendation for the removal of Mr Wako and Maj Gen Ali, releasing his preliminary report before giving the government a copy, alleged reliance on the reports of the Kenya National Commission for Human Rights (KNCHR) without verifying the information; and accepting the confessions of a witness without establishing his credibility.
Prof Alston is also being accused of "failing to cooperate with the government" during his mission in Kenya in February this year.
Even though the joint statement repeated that it was not within the mandate of the UN Rapporteur to call for the dismissal of the AG and the police commissioner, Mr Alston restated in Geneva that the two officials should step aside for any meaningful reforms to take place.
The anti-Alston resolution, which is expected to be debated at the UNHRC in Geneva this week, may well garner the support of countries which feel that the Kenyan case has provides a window to rein in special rapporteurs.
Once adopted, a resolution of censure will be taken before the UN Security Council and those versed with the UN system stated that once strongly recommended by the UNHRC, it will easily be adopted.
The lobbying seems to have started after the Kenyan official response and might culminate, some members of the Kenyan delegation hoped, in a formal censure or a "withdrawal of support" for Prof Alston by the Africa Group and the NAM.
On Sunday, Mr Wako, who is in London pursuing the Anglo Leasing case, denied lobbying the African Group to push for a resolution to condemning Prof Alston.
"No. I cannot recollect lobbying any group in Geneva against Prof Alston," he said by the phone.
A different member of the Kenyan delegation told the Nation that the non-aligned movement members of the council from Asia, Africa and South America, wanted the UNHRC to assert its authority on rapporteurs to ensure that they did not violate the rights of member states from Africa.
Philippines, Sri Lanka, Afghanistan and Brazil have faced similar situations as Kenya with UN rapporteurs who were sent to investigate police brutality.
Firm recommendation
The groups, it was understood, wondered why the rapporteurs kept within UN rules when investigating human rights issues in rich countries but not when sent to poor countries.
Of particular concern to the group was Prof Alston's firm recommendation for the removal of Mr Wako and Maj Gen Ali, releasing his preliminary report before giving the government a copy, alleged reliance on the reports of the Kenya National Commission for Human Rights (KNCHR) without verifying the information; and accepting the confessions of a witness without establishing his credibility.
Prof Alston is also being accused of "failing to cooperate with the government" during his mission in Kenya in February this year.
Even though the joint statement repeated that it was not within the mandate of the UN Rapporteur to call for the dismissal of the AG and the police commissioner, Mr Alston restated in Geneva that the two officials should step aside for any meaningful reforms to take place.
The anti-Alston resolution, which is expected to be debated at the UNHRC in Geneva this week, may well garner the support of countries which feel that the Kenyan case has provides a window to rein in special rapporteurs.
Once adopted, a resolution of censure will be taken before the UN Security Council and those versed with the UN system stated that once strongly recommended by the UNHRC, it will easily be adopted.
