Icpc Policy Briefcharting New Path to Secure Kenya After Series of Terror Attacks

Ambank House 13th Floor Utalii Lane, off University way P.o. Box 44564-00100

International Center for Policy and Conflict

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Phone: +254(020) 2219757 2473042 +254 714 838894 Email: [email protected] [email protected]

Policy Brief

April 2015

Charting New Path of Securing Kenya

A. Introduction

1. International Center for Policy and Conflict (ICPC)1 and larger human rights movement continue to express its deep condolences to the families who lost their loved ones following the barbaric, senseless and unjustifiable Garissa University College terror attack. We empathize and firmly stand with those families. Human rights movement strong message to affected families and relatives remain: Heartless criminals will not break, intimidate and force you to surrender your enduring resilience. You will emerge strong and victorious.

2. ICPC and human rights defenders fraternity strongly and consistently condemn terrorism in all its forms and manifestations. There is no circumstance and or reason that justify terrorism. However, government response and the fight against terrorism should be conducted at all times in compliance with the rule of law and international human rights law. Other extra legal unorthodox methods are harmful and counterproductive.

3. It is unhelpful strategy if the government of Kenya reverts to collective indiscriminate profiling and punishment of individuals, groups and or communities such as depriving liberty, dignity and legitimacy livelihoods. That path plays straight into the hands of terrorists. It is their intention. Successful counter crime strategy would need better than security sledge and hammer response. Government need to develop an integrated multidimensional approach that underlines civilian-security solution as well as concretely identify and address the discerning social, economic, political and other factors which engender conditions in which terrorist organizations are able to recruit and win support.

1 International Center for Policy and Conflict is Nairobi based not for profit independent regional public policy Research, Education and Advocacy Institute focusing on human rights, human security and inclusive development.



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4. The latest painful and tragic loss of innocent lives at Garissa University College has to trigger major overhaul of Kenya security sector and taking tough measures to stem out corruption that has destroyed security and law enforcement agencies consequently compromising security and safety of the country. It is time to take hard decisions without prevarication in radically changing the security and law enforcement systems.

5. The presence of Kenya military within the framework of AMISION in Somalia play vital roles of decapitating and degrading ability of the terror group Al Shabaab to launch attacks from cross the border; creating the right environment for the establishment of proper functioning government and governance institutions including security agencies in Somalia; and providing space for the provision of humanitarian assistance and start process of state and livelihoods reconstruction.

6. It is the core responsibility of the internal security and law enforcement agencies namely the National Police Service, National Intelligence Service and Immigration Service to protect and ensure safety of the country internally. It is the failure on part of these discredited 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 security deterioration in Kenya.

7. The government of Kenya inadequacy in prevention of, and lackluster response to, these persistent senseless attacks exposes serious weaknesses in setting national security policy priorities. It further shows lack of integration, coherence and coordination of security structures; dysfunctional joint security and intelligence assessments by security institutions both civilian and operational agencies; non-existence or limited accountability in resources allocation and utilization; severe deficit of effective oversight mechanisms of security agencies; and finally gross inappropriate emergency preparedness and response coordination.

8. It is deeply disturbing that law enforcement agencies and security institutions remain unsurprisingly highly politicized, compromised, ethnicized and corrupt. The appointment process of top leadership of security institutions is manipulated to award individuals who value political-ethnic loyalty over professionalism, merit, competence, competitiveness and accountability to the people and the Constitution.

9. It is imperative to stress that reforms in one sector of the criminal justice system should be synchronized with reforms in other sectors to improve the entire criminal justice processes and



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increase access to security and justice for all. Security sector reforms are not equal to appointing personnel and or change of guard at the helm. It is addressing the broader systemic structural, institutional, processes, systems and socio-economic political factors hindering the satisfactory performance and delivering of security services by the security institutions.

10. Given the gravity of the structural, organizational and dysfunctional problem of Kenya National Police Service, far-reaching security agencies reforms are prerequisite to achieve three main objectives: enforce constitution functional autonomy of security and law agencies for operational effectiveness and professionalism; strengthen civilian oversight accountability over security agencies; and address the working and living conditions of the law enforcement personnel and their dependents. The security and law enforcement agencies suffer from deep-seated systemic crisis of politicisation, corruption and criminalization. Time has come to do things differently.

B. What is the problem?

1. Kenya has lost three significant opportunities to initiate meaningful security sector reform

with devastating consequences. The lost crucial opportunities are first, in the post horrifying events of the post-election violence where commission of inquiry provided far-reaching recommendations calling for wider range of security agencies reforms and creation of effective accountability oversight mechanisms. Secondly, failure to implement the Constitution and ambitious security agencies laws passed in 2011 that comprehensively restructured and reorganized Kenya security sector. Thirdly, in the immediate aftermath of deadly Westgate massacre the President, in report to Parliament, promised to overhaul the security agencies but never acted on the promise.

2. These failures are not accidental. Delays in pursuing serious purposeful security sector reforms has allowed a network within the security agencies and other beneficiaries of dysfunctional sector to reentrench itself and use the growing threat of crime and terrorism to resist efforts to make them transparent and accountable.

3. The dastardly Garissa University College provide another critical moment of opportunity to conduct major transformation of the security sector governance to enforce professional



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capacity, effective oversight accountability and competence of the security sector to perform its duties in compliance with democratic governance, the rule of law, and respect for human rights.

4. Every Kenyan underscores the urgency of combating organized crime. An accountable, transparent and efficient intelligence driven National Police Service in Kenya, therefore, is essential for the safety, and well-being of the all citizens, national democratic co-existence, and long term local economic inclusive growth and development. It is also critical in creation of secure, stable and certain environment conducive to local and international investor confidence as well as consumers of the security services and impartial enforcement of law effectively.

5. The current reactive security and law enforcement policies are ill defined, incoherent and ineffective. Kenya is not under-policed. It is badly policed by corrupt, inept and impunity ridden security and law enforcement agencies. The country has regime protection security agencies. The security agencies are agents of rule not governance.

6. There has not been a cross-government organised security and crime prevention strategy, coordinated border policing, and strong national tasking and coordination agency. Instead, there are disjointed and compartmentalized responsibilities for policy and operational operating in silos.

7. Apart from lacking National Security Strategy, Kenya has no solid integrated crime prevention and law enforcement policy. It is individual dictum without taking responsibility and accountability. National Security Policy is crucial so that the government can address security challenges in a prioritized and comprehensive manner; effectiveness of the wider security sector can be improved by optimizing every resource; implementation of policies can be guided with accountability; domestic consensus can be built on security priorities; and, regional and international cooperation and confidence can be enhanced.

8. The objectives of such national security policy is therefore to consolidate current fragmented security sector policies and laws with clear periodic review mechanism; provide a new approach to security i.e. from traditional to human security; introduce democratic governance to the security sector; and formulate and coordinate response to new internal and external security changes.



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c. finding Solutions

1. Deterring crime is the sole objective set for the National Police Service and other internal specialized law enforcement agencies. Serious and organised crime is a national threat. It requires a professional approach with credible, capable, impartial and effective law enforcement and security agencies. The current response remains patchy, dysfunctional and ineffective. It is time for fresh start.

2. Constitution of Kenya 2010 provides the critical starting and reference point. It introduced major governance and institutional changes. The security sector was constitutionally, comprehensively restructured and reorganized. However, the security organs namely National Police Service, National Intelligence Service and Kenya Defence Forces continues to operate in old model making them ineffective, vulnerable and irrelevant in tackling modern times sophisticated security challenges. The implementation of pieces of legislation governing security agencies flowing from the Constitution are scorned, disregarded and arbitrarily amended for political expediency reasons.

3. The country has sufficient laws to address satisfactorily security sector reforms and facilitate the ability of law enforcement agencies to tackle security challenges effectively within confine of rule of law. Unfortunately, the countrys security institutions are deeply predatory, dysfunctional, flawed and rotten to address the challenges and enforce law impartially, effectively and efficiently. There is absolute need to separate general law and order maintenance functions of law enforcement agencies especially within the National Police Service from crime detection, prevention and investigations.

4. The Constitution and laws governing Security agencies passed in 2011, 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 professionalized and granted immunity to the security agencies from the Executive and politicians control and directions. The constitution bestows Kenya with non-politicized and independent security agencies as crucial ingredients for good governance, accountability and high standards of



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professional performance. The government has to enforce, respect and implement this constitution arrangement.

5. Specifically, the Constitution directive on national police restructure, reorganize and reforms seek to achieve functional autonomy through security of tenure, streamlined appointment and transfer processes, and the creation of a "buffer body" agency-National Police Service Commission- between the police and the government, and enhanced police accountability both for organizational performance and individual misconduct. State has exercised unanimous hostility to this constitutional scheme.

6. This constitution scheme puts in place mechanisms to better ensure: a) the police have functional responsibility while remaining under the supervision of the political executive; b)political control of police by the political executive is conditioned and kept within its legitimate bounds; c) internal management systems are fair and transparent; d) policing efficiencies are increased in terms of their core functions and most importantly public complaints are addressed and police accountability enhanced.

7. Unfortunately, National government has left no stone unturned to retain control over the police. Predictably, government has been dragging feet on implementing the overhaul and comprehensive police reforms. The Garissa University College terror massacre must prick the conscience of government of Kenya top leadership. This is the security sector system changing moment not tinkering.

8. This is the moment for substantive policy changes in security and law enforcement processes in order to address: a) operational, organizational and capabilities of security institutions; b) build training capacity of both security personnel and security oversight civilian institutions; c) improve the quality of investigations, operations and prosecutions linkages; d) consolidate community oriented policing service and crime prevention; e)make policing more gender sensitive; and f) invest in cost effective and realistic information communication technology in national police service.

9. Genuine police reform is key pillar of security sector reform. Police vetting and purging are only part of broader strategy of transforming, restructuring and reorienting the entire institution of the National Police Service. Therefore, police reforms are transformation or change of a police organization with the aim of strengthening professionalism, accountability, effectiveness, and respect for human rights within the police service. Any reform of the police



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must take into consideration the public security needs, evolving security challenges environment, and expectations that the structure and operations of the police are intended to meet.

10. As the first step, the National Security Council Chaired by President Uhuru Kenyatta, Council on Administration of Justice Chaired by Chief Justice Dr. Willy Mutunga and Council of Governors Chaired by Mr. Isaac Ruto should convene an all-inclusive national dialogue conference to develop and agree on a sustainable national security policy priorities addressing the concrete solution to the chronic security problems and identifying the national interests. The conference will also resolve on the integration and coordination of security institutions as well as strengthening and reforming these institutions that are key to maintaining security, the rule of law and protecting communities under conditions of democratic accountability.

11. Simultaneously, the Directorate of Criminal Investigations, which is part of National Police Service, should be thoroughly reformed, restructured and reorganized into fully-fledged well resourced autonomous operational crime and counter intelligence detection, prevention and investigations national law enforcement agency with special operational unit having capabilities and capacity of conducting high risk missions. Further, National Police Service should be structured and streamlined into specialized units with specific mandate and command for improved accountability, effectiveness and responsibility.

12. The new transformed and structured national crime and law enforcement agency will 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. The agency will task and coordinate other units of police and law enforcement agencies, guided by new national crime prevention and law enforcement policy. The Agency will comprise a number of distinct operational centers namely Terrorism and Organised Crime; Customs and Border Control; Economic and financial Crime; Cyber security crime; human trafficking and sexual crime. Significantly, the capabilities, expertise, assets and crime intelligence of the agency will be shared across the entire spectrum of the security sector as each center of the Agency will operate as part of one single organization.

13. The transformed and restructured new DCI should therefore;



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a. Play strategic role of developing bigger crime picture across the country, analyzing how criminals are operating and how they can be disrupted effectively in full cooperation and coordination with other security agencies locally and internationally.

b. Well equipped, resourced and highly populated with different tested expertise skills with specialized centers (units) each headed by director answerable to Director General of the transformed Agency.

c. Be a powerful, capable and effective law enforcement agency with two-way links with local police units and other security agencies with clear information sharing and feedback mechanisms for effective interagency coordination.

d. House the multi-agency crime intelligence capability facility, and 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.

e. Have the authority to automatically undertake tasking and coordination of the police and other law enforcement agencies in crime matters to disrupt and prevent networks of criminals from operating. This would entail setting the overall operational strategy for tackling crime; ensuring appropriate action is taken against criminals at the right time; stepping in to direct task where there are disputes about the nature of approach or ownership; and where appropriate, providing its own resources in support.

f. Harness the latest crime busting technology to ensure that, subject to robust safeguards, its intelligence gathering and analytical capabilities outweigh the threat posed by criminals

g. Have a comprehensive Crime Prevention and Investigations Policy and seamless working/cooperation mechanism with office of the Director of Public Prosecutions (DPP). 14. The National Government and Council of Governors should trigger Article 187 of the

Constitution to create properly structured and coordinated framework between County Governments and National Police Service to address security and policing concerns at County level. Further, this would see establishment of elaborate County National Police Service leadership, Command and Security Spokesperson structures corresponding with devolved units over the entire national territory. This would see substantive decentralization and strengthening of policing and law enforcement at county level aimed at addressing crime and security challenges informed by local dynamics conditions, streamlining coordinated actions,



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creating leeway for less bureaucratic decision making by local policing and law enforcement agencies, and enhancing local accountability to the people for Police Service.

15. County Policing and Security Authority should be fully operationalized and strengthened under Chair of County Governor. The Authority will review county related security issues prioritized by National Security Council and incorporate local public security concerns to make its decisions. This will create enabling mechanisms for close cooperation, coordination and consultation between the National Police Service and County Government with objective of maximizing the available limited resources for efficiency and impact of security services delivery.

16. The Police Officer in Charge of National Police Service at County level, appointed by National Police Service Commission competitively, consistent with Constitution will chair the County Policing and Law Enforcement Technical Committee. The Policing and Law Enforcement Technical Committee is responsible and answerable in implementation of law enforcement operations and decisions at the County level. The Officer In Charge is accountable to the office of Inspector General, National Police Service Commission and County Policing Authority. This removes interference with the professional work of the National Police Service and provides clear reporting accountability channels. The Officer in Charge should publish accurate County Security and Law Enforcement monthly status report.

17. National Police Service Commission in concurrence with National Parliament should promulgate National Police Service operational manual and procedures to clearly lay down all fundamental duties, functions and basic procedures to guide police officers. In this manner, clear command and individual police officers responsibilities are set and the public will be assured of accountability in delivery of security and public safety services. The manual will effectively be able to equip all police officers with the appropriate mechanics and procedures to cope and respond efficiently and effectively to crimes while being held to account.

18. National Police Service Commission should prepare the National Police Service budget in consultation with the office of the Inspector General of the National Police Service and be presented to the Parliamentary Committee on National Security to further enhance independence of the Service and operational accountability. The budget would be charged directly from Consolidated Fund. The Commission shall manage the Fund. The Commission and office of Inspector General shall publish annual police plans, priorities, objectives, and



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table before National Parliament to enhance transparency in police policy-making and to enable monitoring of the efficiency and effectiveness of the Service.

19. The National Police Service Commission should be professionally reconstituted and full resourced to effectively perform its constitutional policy mandate, human resource management and oversight functions.

20. Finally, there is urgency in changing the security sector governance oversight regime. Security agencies genuine accountability to democratic civilian authorities as provided in the Constitution has not emerged. Security agencies have remained opaque boxes with opaque decision-making processes, controlled by networks of senior police officers and top civil service bureaucrats who have for years resisted meaningful reform, financial transparency, and effective civilian oversight and accountability mechanisms. There is need for proper benchmarking and oversight paradigm shift if the operational side of the security and law enforcement systems is to deliver the desired results.

21. A new strategy of strengthening and tooling the civilian institutions to thoroughly scrutinize, monitor and oversee the work of the national police service and other security agencies is paramount now. Further, building capacity for civilian security bodies and other strategic stakeholders like internal security department, parliamentary departmental committees on security, civil society, private sector and media is crucial in order to guarantee comprehensive operational, budgetary, procurement and management oversight and enforce transparency and accountability mechanisms over security and law enforcement agencies.

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Contacts: email: [email protected] or Executive Director-Ndungu Wainaina: email: [email protected]

Icpc Policy Briefcharting New Path to Secure Kenya After Series of Terror Attacks

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