Law change leads to clash by agencies that probe police
Mrs Anne Makori, the chairperson of The Independent Policing Oversight Authority (Ipoa).
A recent amendment to the National Police Standing Orders that gave the Internal Affairs Unit powers to go directly to the prosecutor on matters within its purview may have triggered sibling rivalry between the agency and policing oversight body.
With the amendment, Internal Affairs is at liberty to submit its files directly to the Office of the Directorate of Public Prosecutions (ODPP) for action, as seen with the Kianjokoma brothers’ murder case.
The amendment means that the unit’s findings can now be acted upon without the input of the Independent Policing Oversight Authority (Ipoa), a move that has since been protested by the latter.
In a letter dated September 24, Ipoa wrote to the Inspector General of Police Hillary Mutyambai, accusing the IAU of conducting parallel investigations, including on criminal matters involving police officers.
“There have been several instances where the IAU has carried out investigations parallel to those by Ipoa regarding criminal conduct by police officers. This has led to confusion in the public, witness fatigue and loss of evidence,” claimed the letter signed by Ipoa chairperson Anne Makori.
“This is therefore to invite you to guide the IAU to ensure that in the conduct of its investigations, it should not conduct parallel investigations in matters within the authority’s mandate,” added the letter.
Prevention of Torture Act
In his response, however, the IG, citing the NPS Act and the Prevention of Torture Act, said nothing stops IAU from enquiring into criminal matters when directed to by him and making recommendations for disciplinary and criminal actions.
“Having reviewed your letter in its entirety, it is my objective determination that the unit should not be cited for carrying out parallel investigations with a view to undermine the authority’s legal mandate but to complement the work to end cases of police excesses,” said the IG.
According to Police Spokesperson Bruno Shioso, the unit carries out independent investigations against police in accordance with section 87(11) of the NPS Act that gives it independence, making it not subject to the control, direction or command of the two DIGs and the director of the Directorate of Criminal Investigations (DCI).
“And to enhance its independence, the unit was recently allowed, through the amendment of the Police Standing Orders, to liaise directly with the Director of Public Prosecutions on matters within its purview,” he said.
Mt Mutyambai has since called on the two units to foster a closer working relationship in ending cases of police excesses in the country and in line with the Standard Operating Procedures developed by ODPP on investigation and prosecution of serious human rights violations committed by police officers.
The Senate’s Justice, Legal Affairs and Human Rights Committee chairman, Nyamira Senator Erick Okong’o Omogeni, has, however, now tabled a Bill in Parliament seeking to have Ipoa granted the primary responsibility to investigate crimes alleged to have been committed by police officers within the next 12 months.
This will be achieved through proposed amendments to the National Police Service Act and the Independent Policing Oversight Authority Act so that IAU, an autonomous unit within the National Police Service, is denied the role of investigating fellow officers.
Disciplinary cases
The Bill, if successful, will limit the unit to dealing with disciplinary cases using internal disciplinary mechanisms.
The National Police Service Act mandates the police with the responsibility for investigating all manner of crimes and also obligates Ipoa to investigate crimes committed by the police.
“As such there exists an overlap of mandate between the DCI and Ipoa on investigating extrajudicial killings and enforced disappearances. There is also an apparent conflict as the police cannot effectively investigate extrajudicial killings and enforced disappearances alleged to have been caused by the police,” a report by the parliamentary committee notes.
The report on inquiry into extrajudicial killings and enforced disappearance also recommends that the Attorney General initiate the establishment of a multi-agency task force comprising representatives from the NPS, ODPP, Ipoa, National Police Service Commission (NPSC), Kenya National Commission on Human Rights (KNCHR) and National Council on the Administration of Justice (NCAJ) to ensure better coordination between the various agencies responsible for addressing extrajudicial killings and enforced disappearances.
The report further recommends that Ipoa’s mandate be expanded to include investigations of rogue officers attached to the Kenya Wildlife Service, Kenya Forest Service, Kenya Prisons Service, and Kenya Coast Guard Service.
