When Ndung'u Wainaina declares in this month's Nairobi Law Monthly that "police (sic) is a critical and most visible cog of the criminal justice system," he adopts a United States of America interpretation of the role of policing in civilised society (Reform or perish, are the only options for Kenya security sector, July 2013). Mr Wainaina fails to appreciate the significance of what he alludes to in his article; that the Kenya Police has had a peculiar history because of the way Kenya was colonised by the British.
The Americans are obsessed with their criminal justice system, even though it is one of the most dysfunctional in the developed world. It is a system that has the highest population of incarcerated convicts in the developed world and one that prioritises prosecutions over public safety. The obsession of American politicians with their various "wars" (War on Crime, War on Terror, War on Drugs, etc.) means that the government's obsession with stamping out crime simply leads to ever draconian laws for the prosecution of these wars. Even the sunniest optimist will admit that the American way has proven woefully inadequate.
We attempted a mongrelised American security system in Kenya, especially with the Constitution. Even the declaration in Art 239(5) that "the security organs are subordinate to the civilian authority" seems like our developing fetishisation of the American Way of doing things; who among us believes that the security apparatus of Kenya is not subordinate to the civilian authority as embodied in the person of the President or the Cabinet Secretary? What we did was to simply add two new institutions to play an oversight role over the security apparatus: the National Police Service Commission and the Independent Policing Oversight Authority. With the proposed amendments to the policing laws of Kenya it is time we admitted that neither the Constitution nor the National Police Service Act or the National Police Service Commission Act have done much to reform policing or the police apparatus in Kenya.
What the mandarins in charge of police reforms should keep in mind is that because of Kenya's history, reforming policing in Kenya cannot be a bastardised version of the developed world's, but one suited to the unique circumstances we find ourselves in. To achieve the transformation of the Police Force into the Police Service, the reform process must first admit that the connection between policing and politics cannot be broken entirely without the entire system crumbling in chaos. Once we accept that policing in Kenya is a vital cog in the political process, rather than in the so-called criminal justice system, then we may begin to make headway in the process of reforming policing in Kenya.
Presidents in Kenya have always preserved their authority and power by using the security infrastructure, that is the police and the intelligence services. In the 1970s, '80s, and '90s, the dreaded Special Branch was the principal tool for interdicting political threats to the Presidency. In the beginning of the Twenty-first Century it was the General Service Unit and the Administration Police's Rapid Deployment Unit that were the principal tools in the extra-legal executions that engulfed Mwai Kibaki's first administration. Until we can persuade Kenyan Presidents that it is no longer necessary to use the coercive power of the police to preserve their authority and instead use the police to ensure the safety of the public, reforms will remain an exercise in futility.
India and Pakistan have been in a state of phony war since they were ripped apart in 1947. Since the Kargil War in 1999, they have engaged in series of confidence building measures designed to reduce the level of hostility between the two governments. These measures do not address the core areas of dispute between them, but are instead supposed to encourage the two nations to build ties that will allow them to finally negotiate in good faith. Kenya needs a similar exercise if it is to succeed in reforming policing, and the security apparatus. These measures must begin by ensuring that the men and women in uniform serve with dignity. Their training must prepare them to view members of the public as customers and not a threat to the stability of the State. Their welfare must form an integral part of their service. It is important that the facilities available to them enhance their dignity and not degrade their souls. The poverty and filth to which the rank-and-file are consigned must be made a thing of the past. Housing, healthcare, transport and family services (including education) facilities must be made available to them. The "small" matters at the periphery of the reform process must take centre-stage for the moment; the "big" ones must await the enhanced confidence in the process that will be engendered.
Finally, we must stop fetishising the Constitution; it is a vital document in the continuing democratisation of the nation. But without the complete and engaged buy-in of the people of Kenya, the Constitution is more like an albatross around our collective necks. We are yet to internalise the civics lesson that the Constitution attempts. Until we do, all the policies and reform programmes in the world will not be worth the paper they are printed on.
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