February 21st 2018

Top Stories / National

Uhuru's carte blanche to police driving Kenya into lawlessness

The Directorate of Criminal Investigations specifically the Special Crime Prevention Unit has been reduced into a political police unit only equivalent to the dreaded Special Brach of the yester years. This is deeply troubling.

By Ndung'u WainainaSaturday, 18 Nov 2017 06:07 EAT

A police water canon sprays teargas on the opposition supporters in Nairobi yesterday.

Kenya is rapidly degenerating into a police state. Under the doctrine of state responsibility, a state is required to guarantee and protect human rights to its citizens. The unconstitutional and unacceptable behaviour of the Kenya police is being encouraged by high ranking government officials, both political and civil service, who make belligerent speeches and offer encouragements to the dehumanizing terrible actions and blatant violation of Constitution by the Kenya police.

The International Center for Policy and Conflict (ICPC) is calling upon the Uhuru Kenyatta regime to embrace the spirit and letter of constitutional democracy before the nation is plunged into chaos. Surely a country that detains its citizens indefinitely, that allows its police to use force and torture cannot call itself peaceful or democratic. Neither democracy nor peace is present when citizens are denied freedom of assembly or safety from harassment within the confines of their neighbourhoods.

The Police are a crucial part of the justice machinery and unfortunately at present, an abusive part. Indeed, there is a responsibility on the state to protect her citizens and to do otherwise is to abdicate the legitimate expectations of its citizens. The collective humanity of a nation’s citizens is betrayed when its people are forced to live in state induced fear.

When security services and other state actors who are supposed to act independently and impartially are thought to be taking sides, it creates spite and rancor. Kenya is highly polarized. Consequently, the police force should be guided by principles of professionalism; they must be independent and impartial in the discharge of duties so that their actions are not misinterpreted for protecting a particular political side.

Kenyans are being arbitrarily arrested and detained in police stations without regard to their rights under the constitution. Kenyans are becoming immune to the routine reports of police brutality where police has become an instrument of oppression rather than policing. The police arrogantly assert that only their interpretation of the law is valid.

The constant show of and use of excessive force by the Kenya police is intended to create a climate of fear and submission amongst Kenyans. Benefactors of this cruel Kenya police system align themselves with these instruments of fear and defend the police and show scant concern for the victims of police brutality and those whose rights are trampled upon by the police.

If one had any doubts about Kenya’s slide into a police state, the unfolding disregard of Constitution guaranteed right and freedoms of assembly, demonstrations and picketing as well as utter contempt to obey courts’ orders clearly debunks the doubt. In the face of this shameful police brutality and serious violations of human rights to life and physical security, the Uhuru Kenyatta government has remained mute and at times cheered the police on and made alarming statements in support of horrifying police actions.

Kenya finds itself now in a situation where the police force, which should be the upholder of the law, is now an agent of fear and intimidation. The primary purpose of the security forces has become to protect the ruling party, and the personal power of the president.

Policing skills in investigation, crowd control, protective and preventive action, has been sacrificed in response to the demands of political obedience, extortion and brutality. The rights of people holding contrary views to those of the ruling party are not respected.

The Directorate of Criminal Investigations specifically the Special Crime Prevention Unit has been reduced into a political police unit only equivalent to the dreaded Special Brach of the yester years. This is deeply troubling. The decay of law and order under the Kenyatta government has been matched by a sharp deterioration in the behavior of the police force, which perpetuates the decline.

The political role comes with demands by politicians and the influential to carry out visible crackdowns or arrest specific people. In a context where “quick” and politically defined results are expected and where corruption, obedience, and opportunism are entrenched in the security forces, the torture and humiliation of suspects has become a culture.

The police are not above the constitution and are not a law unto itself. Not in any state that claims to be a democracy. The police must respect the rights of individuals as guaranteed by the constitution. All arms of state be it parliament or the executive must act within the terms of their legal authority.

The doctrine of legality is a constitutional requirement under which all institutions of the state including the police are regarded as having only those powers conferred to them by the constitution.

The constitution is a charter of government and governs all state conduct. It is a body of fundamental principles by which a society organizes a government for itself, defines and limits the powers of the government, and regulates the relations between several government organs inter se and defines the relations of the state with its citizens.

The aim of the rule of law is to limit and check the arbitrary, oppressive, and despotic tendencies of power, and to ensure the equal treatment and protection of all citizens irrespective of race, tribe, class, status, religion, place of origin, or political persuasion. It implies a legal framework that is fair, impartial, and that legitimizes state actions.

The idea of a constitutional democratic government, or constitutionalism, and the rule of law connote a government defined, regulated and limited by a constitution. Constitutional democracy is founded upon the notion of checks and balances, namely state institutions: the legislature, the judiciary, and the executive-while operating independently of one another, act to check each other’s operations and balance each other’s power. In essence, all three institutions are duty bound to uphold the rule of law.

A government operating under a written constitution has no more power than is granted to it by the constitution. Kenya cannot be allowed to descend into a nation of illegal actions by one arm of government while the rest remain silent and complicit. Aggression by any part of agency of state must be condemned by all. This is the only way we can begin to restore Kenya.

The writer is the Executive Director of the International Center for Policy and Conflict (ICPC).

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