FLAWS GOVERNING THE POLICEIn late August, the NPS Bill was passed by Parliament and assented to by President Kibaki. It has been reported that the NPS Commission Bill has also been passed. This is good news, as once the two pieces of legislation have been published in the Kenya Gazette (which, for some reason, has not been done yet), they will become operational.The other critical piece of police reform legislation, the IPOA Bill, still needs to pass through the third reading and be assented to by the President. There is a dire need to prioritize the enactment of all the police reform legislation after the allegations raised by the Release Political Prisoners Trust (RPPT) and the National Civil Society Congress last week.The RPPT has “recorded 15 separate incidents of extra-judicial killings in the recent past”, and the government must take responsibility for the deaths. The Independent Legal Medico Unit and the Kenya National Commission on Human Rights have raised the alarm after the death of a 16-year-old boy in Kabete.The government should take responsibility by ensuring an independent investigation into the deaths.Ideally, the investigation should be the job of a qualified body independent of government and the police — the exact body proposed under the IPOA Bill. The allegations highlight the fact that the Bill needs to be enacted fast — to guarantee that any officers found to have acted outside the law are held to account. These reforms will also help the police as community trust in the Service will increase. For example, an independent investigation into a serious injury may find that the police officer was acting legally.If this is so, the community is more likely to believe the outcome of an independent investigation. Those officers found to have acted outside the law will be held accountable, meaning that once again, the reputation of the police will increase. In addition to the police reform legislation, the Witness Protection Act should also be reconsidered to ensure those that lodge a complaint with the IPOA or another investigatory body do not face retaliation.The RPPT believes that some of the extra-judicial killings recently documented are linked to police silencing witnesses. The credibility of the Witness Protection Agency is critical in encouraging the public to report police violence.Like with the boards of other key institutions, Parliament should consider amending the Act so that current MPs or key public service institutions do not sit on the Board of the Agency .Regulation of PoliceOf course, having been granted these privileges, it is important for society to closely monitor those who exercise these powers. Temptation to engage in the same activities that the police are supposed to prevent is very real and requires this body of law in order to prevent individuals from contributing to the problems of society rather than policing them. Police laws often mirror constitutional and human rights laws, in that these are often the areas police are likely to stray. For example, an officer who has become frustrated with the criminal justice system is prevented by police laws from beating confessions out of suspects, just as that suspect has a human right against such treatment .A – CONDITIONS AS TO THE USE OF FORCE1. A police officer shall always attempt to use non-violent means first and force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result.2. The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.3. When the use of force results in injuries—(a) the police officers present shall provide medical assistance immediately and unless there are good reasons, failing to do so shall be a criminal offence; and(b) shall notify relatives or close friends of the injured or affected persons.4. A police officer who uses any form of force shall immediately, report to the officers’ superior explaining the circumstances that necessited the use of force and the supervisor shall judge the rightfulness and decide on the next step, subject to these regulations.5. Any use of force that leads to death, serious injury and other grave consequences shall be reported immediately by the officer in charge or another direct superior of the person who caused the death or injury, to the Independent Police Oversight Authority who shall investigate the case.6. The Inspector-General shall not be precluded by virtue of paragraph (5) from conducting investigations into the matter.7. A police officer who makes a report to the Independent Police Oversight Authority in accordance with paragraph (5) shall—(a) secure the scene of the act for purposes of investigations; and(b) notify the next of kin, their relative or friend of the death or injury as soon as reasonably practical.8. It shall be a disciplinary offence for a police officer to fail to report in accordance with these regulations.9. An officer shall not tamper or otherwise damage any evidence from the scene of the act.10. A Police officer in uniform shall at all times affix a nametag or identifiable Service number in a clearly visible part of the uniform11. Following the orders of a superior is no excuse for unlawful use of force.12. The Cabinet Secretary responsible for Internal Security and the Inspector-General shall make regulations for giving further direction on the lawful use of force, and the regulations shall include, among other things—(a) a list of lawful means to use force;(b) training requirements to be allowed to use these means;(c) procedures for reporting the use of the means of force, indicating whether the use of such means was necessary or not.B – CONDITIONS AS TO THE USE OF FIREARMS1. Firearms may only be used when less extreme means are inadequate and for the following purposes—(a) saving or protecting the life of the officer or other person; and(b) in self-defence or in defence of other person against imminent threat of life or serious injury.2. An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed, except—(a) where doing so would place the officer or other person at risk of death or serious harm; or(b) if it would be clearly inappropriate or pointless in the circumstances.3. A police officer shall make every effort to avoid the use of firearms, especially against children.4. Any use of firearm, even if there’s no injury, shall immediately be reported to the officer’s superior.5. Any use of fire arms that leads to death, serious injury and other grave consequences shall be reported by the officer in charge or another direct superior of the person who caused the death or injury, to the Independent Police Oversight Authority who shall investigate the case.6. The Inspector-General is not precluded by virtue of paragraph (4) from conducting investigations into the matter.7. A police officer who makes a report to the Independent Police Oversight Authority in accordance with paragraph (4) shall—(a) secure the scene of the act for purposes of investigations; and(b) notify the next of kin, their relative or friend of the death or injury as soon as reasonably practical.8. The Cabinet Secretary in consultation with the Inspector-General shall make further regulations on the use of firearms which shall include regulations—(a) that specify the circumstances under which police may carry firearms and the type of firearms and ammunition permitted;(b) that prohibit firearms and ammunition that cause unwarranted injury or present unwarranted risk;(c) to regulate the control, storage and issuing of firearms, including procedures that ensure that officers are accountable for the weapons and ammunition issued to them (in principle; don’t allow to take fire arms home and officers are provided by their superior with a fixed amount of ammunition and have to explain at any time when requested if bullets are missing);(d) for the selection, training and testing of officers authorised to carry firearms including techniques that could diffuse tension and reduce the likelihood of the need to use force in order to ensure that firearms are used appropriately and with the least risk of causing unnecessary harm;(e) to provide for testing of officers carrying fire arms at regular intervals, but at least once a year;(f) and provide for consequences when failing the test referred to under paragraph (e) which shall at least include that failing to pass the test shall result in losing the right to carry fire arms until the officer does pass the test; and(g) provide for a reporting system whenever officials use firearms in the performance of their duty.C – SPECIFIC RESPONSIBILITIES OF SUPERIORS1. Superior officers should do everything in their power to prevent unlawful use of force or firearms, and when such unlawful use of fire arms does occur, they should report this immediately to the Independent Police Oversight Authority and to the Inspector-General.2.(1) Refusing to carry out orders that include unlawful use of force should not be penalized and should not be a disciplinary offence.(2) Giving an order that would lead to the unlawful use of force is a disciplinary offence and may amount to a criminal offence.(3) The station commander, or any other relevant direct superior, shall, immediately after the death or serious injury of a person who at the time of his death or injury, was in police custody or under the control of the Police or in any way the death or serious injury was the result of police action or inaction which includes anyone who may have been injured or killed being a bystander during a police operation—(a) take all steps to secure evidence which may be relevant to that death;(b) immediately report the case to the Independent Police Oversight Authority, using the means of communication that guarantee there will be the least delay, and confirm this in writing no later than within 24 hours after the incident;(c) supply the Independent Police Oversight Authority with evidence of and all other facts relevant to the matter, including, if available, the names and contact details of all persons who may be able to assist the Independent Police Oversight Authority should it decide to conduct an investigation; and(d) non-compliance with the above shall be an offence .