As stated in the previous sections, the 2007 post-election violence provided an opportunity to provide an audit of the conduct of Kenya’s security system in the elections, a move that had never happened in the history of the republic - that of putting security chiefs to account for their acts and omissions. In fact, it demonstrated that it was no longer tenable to trust the police on the one hand to undertake internally driven reforms, while at the same time trusting the political elite to champion police reform process - the police because attempts by the police to reform themselves bore no fruits, and the politicians because the ruling elite had previously only been interested in piecemeal reforms targeting police professionalism without accountability, while at the same time maintaining the status quo.
Thus, the police reform process that emerged after the 2007/08 post-election violence to a large extent supports the argument that sometimes a dramatic event, often negative, triggers the need to reform (Downs, 1972) and that long periods of policy stability could be changed dramatically through a short period of critical mobilisation (Baumgartner and Jones, 1991). These debates have already been discussed and developed in chapter three. However it is important here to mention that while Waki Commission spelt out the acts and commissions of the security sector in the 2007/8 post-poll violence, institutional problems including the police were largely responsible. This triggered a series of processes that sought to address the problems. Reforming the security was one such process with the police reform being the basis of the reform process. Though the debates in this chapter to a large extent assume historical analysis, special focus of process-tracing is significant in the institutionalisation of the police reform process. The periods, 2008-2010 and 2010-2014 provide the basis of this analysis.
4.3.2.1.1. Developing the Framework for Reform: 2008-2010
The first phase of the reform process relates to the agenda setting process of the police reform process and establishment of the reform framework from which the subsequent reform process would filter.179 The Ransley committee marked the first major step to kick-start the process and widely the basis from which the reform process flowed. ‘It informs the need to reform the National Police Service.’180 Whilst the previous attempts were mainly state-centric processes with little or no public participation, the Ransley Committee adopted a more comprehensive approach. The committee traversed the country collecting views from the public and the police thus instilling a sense of ownership of the process.181 It gave the process a sense of local ownership amongst the police and members of the public, and there had the benefit of buy-in from amongst various stakeholders. Notable was the political will from the government that expressed the readiness to implement the recommendations of the report when it presented its interim report by relieving the police chief of his duties on the September 08, 2009 and establishing the Police Reform Implementation Committee (PRIC) to oversee the reform process on January 08, 2010.
As a direct outcome of the Ransley report, the Police Reform Implementation Committee (PRIC) was established through the Kenya Gazette Notice No. 169 of January 08, 2010. This was critical step in the coordination of the reform process. In the past, the Administration Police (AP) and the Kenya Police (KP) undertook reform initiative separately thus making it difficult to deliver a coherent reform strategy. It took about two months only for the government to agree to the establishment of the committee as recommended by the Ransley committee. During this time, there were indications of conflicts of power-sharing dynamics within the coalition government and policy decisions would take too long to implement. That notwithstanding, the fact that the coalition partners
179 See Chapter 3
180 Interview with K-Int1
181 Interview with K-Int2
agreed to establish the Police Reform Implementation Committee within a period of only two months was therefore remarkable by any standards and reflected the existence of consensus amongst the political players on the reform process. Later on in the process, however, there were delays in the implementation of priority areas relating to the institutionalisation of the reform process.182 The committee, ‘together with Internal Security Ministry then drafted legislation that brought in all the various organs that are now involved in the police sector, that is; the National Police Service, the National Police Service Commission, and the Independent Oversight Authority.’183
In drafting the bills, namely the National Police Service Bill, and the Independent Policing Oversight Authority Bill, the committee adopted a consultative approach. Like the Ransley committee, the Naikuni committee sought views of the public on the bills before presenting the same to the cabinet for approval. The committee also made submissions to the Constitutional Review Committee about the reform provisions in the constitution. This made the inclusion of the police reform process less controversial compared to other provisions including devolution.
Once approved by the cabinet, the committee held a consultative meeting with the house committees namely the National Security, Administration of Justice and Legal Affairs and Constitutional Implementation Oversight Committees on November 19, 2010 in Mombasa to seek a common ground before presenting the bills to the house. The bills were tabled before parliament on August 23, 2011. Since the process of developing these bills was participatory amongst different stakeholders and in particular amongst legislators, the passing of the bills was thus less controversial in the house.
182 See Chapter 5
183 Interview with K-Int2
4.3.2.1.2. Institutionalising the Reform Process: 2010-2014
The second Phase of the reform process was the institutionalisation of the reform process which is traced to the promulgation of the 2010 constitution. While evidence suggests that there had been good intentions of reforming the police, the framework was not followed through due to lack of institutionalisation of the process. The Kenya constitution passed on August 4, 2010 was a first in many ways. It echoed the many years of struggles in changing Kenya’s governance. In relation to the police; the constitution institutionalised the police reform process. Most of the recommendations put forward by the Ransley and Naikuni committees were included in the constitution thus effectively institutionalising the reform process.
For the first time in the history of the republic, the constitution insubordinated security to the will of the authority of the constitution and the people through their elected members of parliament and made security organs subordinate to civilian authorities.184 The constitution also provided the platform for legislating on the laws that would thereafter control the reform process through various acts of parliament. It provided for the establishment of the office of the Inspector General, the National Police Service, the National Police Service Commission and the Independent Policing Oversight Authority. The role of these institutions in the reform process forms the crust of the police reform debate at the meso level.
While it may have been worthwhile to pass the laws concurrently to provide a holistic package for reforms, these were done at separate times.
The National Police Service Act was published first followed by the National Police Service Commission Act and Independent Policing Service Authority, while the Private Security Bill and the Coroners Bill are still pending. This approach created confusion as to how the Inspector General of Police and the two deputies would be appointed. Some members of the civil society viewed this as a deliberate attempt to allow
184 See section 3.6.2
for a political deal between the Kibaki and Raila by making such appointments through a selection panel rather than as provided for in Article 246(3) of the Kenyan constitution, which bestows such a function to the National Police Service Commission. Of particular interest is the delay in passing the pending bills which makes it difficult to determine the entry point of private security providers in the reform process. This has presented a challenge as pointed out by a key respondent; ‘Among the challenges we have are those pending bills. You know there is a meeting point for these. So even if you enact the National Police Service Act, the National Police Service Commission Act, there is the role of the private security providers. There is that disconnect.’185
While the police laws provided for distinct role of the various actors in the reform process, interpretation of these laws by various actors led to confusions amongst the institutions, particularly involving the NPSC and the office of the Inspector General. The former was viewed in some quotas, particularly within government, to wield immense powers thereby weakening the latter’s control of the police service. These developments led to the introduction of amendment bills to the National Police Service and the National Police Service Commission Bills that strengthened the office of the Inspector General by transferring the most crucial functions of the NPSC including; transfer and disciplining officers to the Inspector-General.186 This confusion prompted ICPC to seek judicial interpretation of the role of the Inspector General and the NPSC regarding appointment, transfers and promotions.187
On March 28, 2014, the High Court ruling declared unconstitutional and illegal the Inspector General’s promotion of officers. The case set precedence and formed the basis of contestation between the office of the Inspector General and the NPSC. Later on the April 24, 2014, members of parliament passed the contentious bills that effectively provided powers to the Inspector General while weakening the NPSC and the IPOA. In effect,
185 Interview with K-Int3
186 See 4.3.2.1.2 for further discussion
187 Interview with CSO2
external accountability that had been a critical issue in the development of police reform process was taken aback. The bills were signed into law in June 2014.
The two phases identified in the process tracing of the institutionalisation of the police reform process demonstrate stakeholder participation in varying proportions. The process of developing the framework for police reform was more participatory with the government conceding some ground to build consensus. However, despite opposition to amendments of the police laws from civil society groups and donors, the government remained recalcitrant and insisted on pushing for the amendments to the police reforms laws that were earlier developed through consultations.
Whilst there was the need to address the controversies involving the IG office and that of the NPSC, failure of the government to consult broadly supported the claims that the government was not keen on genuine police reform. In fact, some respondents claimed that of all the institutions established to spearhead the police reform process, it was only the office of the Inspector General that still remained political.188