Maraga report takes on ODPP directive, calls for police changes
Warders entertain guests during a New Year’s Thanksgiving ceremony at the Nyeri Prison, King’ong’o on January 1.
A task force on police and prisons reforms, chaired by former Chief Justice David Maraga, has come up with a recommendation that could render a directive by the Office of the Director of Public Prosecutions (ODPP) null and void.
Mr Maraga’s team recommended the retention of the Internal Affairs Unit (IAU) in the National Police Service (NPS) to investigate the conduct of police and prison officers.
The team has adopted an earlier recommendation made by Justice (Rtd) Philip Ransley that the unit investigates criminal and disciplinary offences.
“On criminal prosecution of officers, the unit should liaise directly with the ODPP.
On administrative matters, it should channel its recommendations to the Inspector-General of Police and the National Police Service Commission (NPSC) in case of senior officers,” the report reads.
Deputy DPP, Victor Mule had in a November 4, 2023 internal memo told prosecutors that matters involving police officers be referred to the Independent Policing and Oversight Authority (Ipoa) and upon conclusion, be forwarded to the ODPP for the purpose of deciding whether or not to prosecute.
“Kindly be advised that, all cases/matters involving police officers should be referred to the Independent Policing and Oversight Authority so as to undertake independent and comprehensive investigations pursuant to Ipoa’s statutory mandate,” the directive reads.
President William Ruto (right) receives the security agencies welfare reforms task force report from former Chief Justice David Maraga at State House Nairobi on November 16, 2023.
A push-and-pull between Ipoa and IAU over who is capable of investigating police misconduct has dragged on for many years.
One side accuses the other of not being capable of fairly investigating “itself” and thus needs to stick to internal disciplinary issues.
The other prides itself in the effectiveness of the cases it handles despite being an arm of the NPS.
Mr Maraga’s team concluded that a complaint against an officer can only be determined to be criminal or disciplinary after thorough investigations, hence the need to allow the IAU continue looking into police officers’ misconduct.
“It does not make sense to use limited resources and later on hand over a complete file to another entity,” the task force says in its report.
“In order to avoid overlaps, the NPS and Ipoa should develop a memorandum of understanding as envisaged in the service standing orders.”
According to the task force, Ipoa needs to concentrate and exercise its oversight role over the service, including IAU, but only investigate misconduct and deal with serious human rights violations.
The report by the Maraga team says the Directorate of Criminal Investigations (DCI) should deal with cases involving civilians and institutions and leave matters of criminal investigation on police misconduct to the IAU.
“However, because of its technical capabilities and expertise in critical areas such as ballistics, forensics, cybercrimes and fingerprints, the DCI should offer support to Ipoa and the IAU,” the report adds.
The task force pushes for further recommendations to the NPS Act to ensure the director is competitively recruited and that the unit gains financial autonomy so as to conduct its mandate effectively.
An implementation matrix of the task force’s recommendations has been established and will be rolled out this year, paving the way for efficiency in investigating misconduct and improving the general welfare of police officers.
Three services
The other recommendation is a call for the service to develop a comprehensive policy to guide the determination of persons requiring VIP protection and the deployment of necessary protection.
A recommendation to change Section 28 of the NPS Act, 2011 will further see the DCI turned into a Service – the Criminal Investigations Service (CIS) under the direction, command and control of the Inspector-General of Police.
“The Criminal Investigations Service should further consist of the three-tier ranks published by the Cabinet Secretary,” the report by the Maraga team recommends.
The three tier ranks are part of the proposed changes to the NPS structure to enable distinction between officers.
In the proposed structure, the top rank will be gazetted officers (Inspector-General; Deputy Inspectors-General Kenya Police Service, Administration Police Service – APS and the CIS; Senior Assistant Inspectors-General; Assistant Inspectors-General; Commissioners of Police; Senior Superintendents; Superintendents; and Assistant Superintendents.
“NPS gazetted officers should be designated without affiliation to any particular service. Gazetted officers should be subjected to the same training and standards and should, thereafter, be deployed for duty in any of the three services,” the report by the Maraga task force says.
Tier two will include the NPS Inspectorate ranks (Chief Inspector; and Inspector II and I) from the three services.
Tier three will entail subordinate officers ranks that are Senior Sergeant; Sergeant, Corporal III, II and I; and Constable III, II, and I.
The team also proposes an automation of recruitment to minimise corruption and abuse as is usually the case.
“The NPSC should withdraw its delegation to the Inspector-General of Police of all the responsibility to carry out recruitment. The commission may, however, work with vetted NPS officers in carrying out recruitment,” the report says.
“Recruitment to entail psychometric and aptitude tests in order to ensure selection of suitable persons.”
Additionally, the team led by the former Supreme Court chief, proposes that the minimum grade for recruitment into the police service be raised to mean grade C- (minus) in the Kenya Certificate of Secondary Education (KCSE) examination or its equivalent, in line with the views it received.
To address the challenges around immaturity prevalent in the entrants, the minimum recruitment age should be raised from 18 to 21.
