The National Police Service shall "comply with constitutional standards of human rights and fundamental freedoms" [Art. 244(c)] It is irrelevant whether or not the Cabinet Secretary responsible for police services or the Director of Public Prosecutions have, in exercise of the constitutional mandates, given directions to the Inspector-General of the National Police Service; the Service is constitutionally bound to comply with the aforementioned constitutional standards. Including facilitating the exercise of human rights or fundamental freedoms by other Kenyans. Such as the the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities [Art. 37].
Though "assembly" is exercised collectively, it is not necessary for one man to demonstrate or picket or present a petition to a public authority. And therefore, the right in Article 37 can be exercised by an individual who is part of an assembled mass of people. And consequently, the police service has to treat each individual in the mass of people separately when they exercise their Article 37 rights. When an individual ceases to be peaceable and takes up arms, he ceases to exercise his Article 37 rights and instead, commits an offence (such as the offence of affray under section 92 of the Penal Code, Cap. 63).
It is accepted as a given within police circles that whenever an "opposition demonstration" takes place, the demonstrators will commit offences. Therefore, it follows, that whenever the "opposition" calls for a demonstration, the police presence "must be felt" and in order for this to be true, the police themselves, will assemble, armed to the teeth, and trail the demonstrators wherever they go. Whenever these two groups encounter each other, there almost always is a precipitating act, and violence soon follows. Kenya hasn't been able to crack the code of how political demonstrations can be held without the police service and demonstrators engaging in running battles.
One is witness, though, to a certain amount of psychological insecurity among the people purporting to make public safety policy. Unlike the late Gen. Nkaissery, Prof. Saitoti and Hon. Michuki, public safety policymakers of today lack the command presence that reassures the public that they know what they are doing and they have the respect of the men they command. These days, these people are prone to make rash decisions which, quite often, are intended to stamp their authority but, instead, come off as panicky overreactions to minor nuisances. Many of their underlings, meant to offer technical, tactical and strategic counsel, don't have the institutional intelligence to execute public safety policies effectively. So instead, they use the blanket term "national security" as an excuse to undertake public safety policies that undermine constitutional standards at every turn. These are the true authors of such horrors as the killings of Baby Pendo and Willie Kimani.
It is now thirteen years or so since Kenya promulgated a new constitution. In that time, while many State organs have taken steps to inculcate constitutional standards in their policies and operations, the public safety authorities, especially the police service and national security sector, has been reluctant to follow suit. In some cases, there has been active resistance to the constitutional realities of the day. As a result, the relationship between the people and the police authorities has been quite strained and, whenever the people have challenged the authority of the policy, peaceably or otherwise, the police have been given a free hand to crack down and crack down hard. Political freedoms have suffered as a result. If we could address the insecurities of the national security mandarins, perhaps we could prevent future knee-jerk reactions to political activities that rubs them, and their superiors, the wrong way.
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