POLICE REFORM TASK FORCE FACES CHALLENGING MANDATE

UNCLAS SECTION 01 OF 03 NAIROBI 001652 SENSITIVE SIPDIS INL FOR KEVIN BLAKEMAN E.O. 12958: N/A TAGS: ASEC KJUS PGOV PHUM KE SUBJECT: POLICE REFORM TASK FORCE FACES CHALLENGING MANDATE REF: NAIROBI 1567 AND PREVIOUS NAIROBI 00001652 001.2 OF 003 ¶1. Summary: The Police Reform Task Force (PRTF),chaired by retired Justice Philip Ransley, has been working since early June to develop a comprehesive set of recommendations on much-needed police reforms. The Task Force held public hearings in Nairobi on July 22 and 23, after first interviewing police stakeholders and then traveling throughout Kenya to hear public and civil society views on reforms. While a clear consensus has emerged among Task Force members and stakeholders on a number of key reforms, some proposals, notably the proposed merger of the Administration Police (AP) and the Kenya Police Service (KPS),remain highly controversial. There is also a great deal of public skepticism about the likelihood of this Task Force's proposals actually being implemented, given that the work of other similar commissions has to date failed to result in any significant reforms. At the PRTF's public hearings in Nairobi, Attorney General Amos Wako put forward his six point plan for police reform and, in an apparent jibe at the agency and its commissioner, proposed taking the criminal investigation mandate away from the Kenya Police Service. End summary. ¶2. The Police Reform Task Force (PRTF) began work in early June to develop a comprehensive set of suggestions on police reforms. Following consultations with stakeholders in Nairobi and the provinces, its final report is due on July 31. The public and some stakeholders remain skeptical about the probability that the PRTF's recommendations will be implemented. Poloff met with Task Force member Kathurima M'Inoti, Chairman of the Kenya Law Reform Commission, for some insight into the Task Force's deliberations to date. M'Inoti said that consensus had emerged early among the Task Forces members on two key issues, namely the need for independent oversight authorities, both internal and external; and the need to establish a Police Service Commission (PSC). An independent oversight mechanism is currently included in the police Standing Orders (which are not a public document),but it dates from the time of independence and needs to be modernized, said M'Inoti. An independent external oversight board with civilian members that could investigate citizen complaints is also necessary, he added. The purpose of the PSC would be to regulate recruitment, promotions, assignments, and pensions, as well as to provide advocacy for police officers since they are prohibited by law from unionizing. M'Inoti cited as an example of the need for advocacy the case of an officer who facilitated access to detainees in North Eastern Province by the Kenya National Commission on Human Rights, as required by law, and was subsequently demoted and transferred four times. TASK FORCE MEMBERS NOT IMPRESSED WITH CASE FOR MERGER ¶3. The Commission of Inquiry into Post-Election Violence (CIPEV),better known as the Waki Commission after its chairman Justice Philip Waki, made extensive recommendations regarding reform of Kenya's police services and national security architecture as part of its 500-page report released in October 2008. One of the Waki Commission's controversial recommendations in the area of police reform was to merge the politicized Administration Police (AP) into the more independent Kenya Police Service (KPS). M'Inoti described the merger issue as "very difficult," noting that if a merger did not take place, steps would have to be taken to address the issue of the political control of the AP by the Provincial Administration hierarchy, which reports directly to the President. M'Inoti said that the AP are the only law enforcement officers on the ground in remote areas plagued by tribal conflict, and there was fear of creating a security vacuum if AP officers were removed from their grassroots positions following a merger. On the other hand, he said, many politicians arguing against the merger were motivated by the desire to retain control of the AP in the field. He described the KPS as "more indisciplined and corrupt" than the AP, a perception that is likely shared by other Task Force members and would not lead them to support the merger proposal. M'Inoti added that the Task Force members were struck by the differing presentations of AP Commandant Mbugua and KPS Commissioner Ali. Mbugua came with a team of senior officials, all of whom participated in answering questions; NAIROBI 00001652 002 OF 003 Ali also came with a team, all of whom remained silent while he answered the Task Force's questions. ATTORNEY GENERAL CALLS FOR NEW CRIMINAL INVESTIGATION AGENCY ¶4. The first speaker at the Task Force's public hearings on July 22 was Attorney General Amos Wako, who laid out his vision for police reform and improvements to the criminal justice system overall. (Comment: Not surprisingly, AG Wako did not include his own resignation as a first step toward improved functioning of the Kenyan judicial system, although it has been proposed by many in civil society and government as a helpful or even necessary prerequisite for meaningful change. End comment.) Wako laid out a six point plan, including capacity building; increased accountability; an update code of conduct and police standing orders; establishment of a Police Service Commission; abolition of police prosecutors; and, controversially, the creation of a new national criminal investigation agency. ¶5. On capacity building, Wako noted the need for increased funding to the police services to pay for modern equipment (including protective clothing/body armor, as a number of officers have been killed recently in the line of duty), improved infrastructure and training, and better salaries and benefits. (Note: Some junior officers make as little as $150 a month and live in very poor housing conditions. End note.) He also advocated for raising the minimum academic qualifications for entering the police forces from a D plus to C plus average, as well as lowering the retirement age from 60 to 55 in order to allow more opportunities for advancement to the senior ranks. Wako urged greater accountability "to restore public trust and confidence in the police" and suggested that an independent oversight authority be established with a wide mandate covering all Kenyan law enforcement agencies. He added that the oversight body needed to have its own investigators with full police powers and could, when applicable, refer criminal cases to the AG for prosecution. (Note: Civil society groups allege that the AG's office frequently refuses to act on politically sensitive cases, and referral to the AG is by no means a guarantee that prosecution will follow. End note.) Wako described the police standing orders as "outdated and inadequate," and stressed that Kenya needs a modern police code of conduct which respects human rights and is aligned with international best practices, including the UN Code for Police Officers. He also noted the urgent need to set up a Police Service Commission, which would bring transparency and fairness to police hiring, promotion, assignments and benefits policies. ¶6. Wako then made his first controversial suggestion: he recommended the creation of an independent national criminal investigation agency, modeled structurally on the National Security and Intelligence Service (NSIS). The justice system "depends on the effectiveness of the criminal investigation arm and the quality of investigations," Wako said, and noted that the creation of a national criminal agency would free up the KPS to return to its "core function" of maintaining law and order. Wako recommended that a Director General (DG) for the new agency be appointed by the President in consultation with the Prime Minister and with approval of Parliament, and that the DG have security of tenure (as does Wako himself). He also advocated for removing the Department of Public Prosecutions (DPP) from under the AG's office. Kenya uses minimally trained police prosecutors to handle most crimes, including some serious felonies. Wako said that the AG's Office and DPP strategic plan calls for hiring 497 additional state counsels between now and 2012 to allow the phasing out of police prosecutors. He also outlined the proposed use of "lay prosecutors" (roughly the equivalent of paralegals) to handle misdemeanors, especially the large volume of minor traffic offenses that clog the Kenyan court system. (Note: Most of Wako's suggestions were positive if disingenuous where they rely on efficient action by his office. We have long supported removal of the DPP from under the AG's supervision, as well as the elimination of police prosecutors. End note.) COMMENT ¶7. Clearly aware of widespread skepticism over the effectiveness of the Task Force, the chairman told the NAIROBI 00001652 003 OF 003 audience at the public hearing that "we are conscious of past recommendations (by other commissions) and that the net result has been very little," but said that he believed the government has the political will to make fundamental changes and that the Task Force would "insist" that the government act on its recommendations. The problem is that this Task Force, like others of its type, does not have the ability to compel implementation. The problems in Kenya's law enforcement agencies are systemic, and public perception of the near-complete lack of accountability and a culture of impunity within the police have eroded confidence in the police and exacerbated crime, instability, and vigilantism. As one of the speakers at the public hearing said, "How can the police enforce the law when they feel they are above it?" Emergence of consensus on some core reforms (establishing a PSC and oversight mechanism, for example) is a positive sign, but it will be a much greater challenge to convince the government to tackle accountability and impunity in a meaningful way. The Ambassador and mission team will continue to press hard for real reform, especially on accountability and establishment of a functional rather than merely ornamental oversight mechanism. The continued presence of AG Wako on the judicial side and Commissioner Ali at the helm of the KPS would also likely act as major barriers to fundamental reform. SLUTZ