Memorandum to CIC National Police Service Amendment Bill 2013
To: The Chairperson Commission on the Implementation of the Constitution
From: The CEO The East African School of Human Rights P.O. Box 11391-00100 Nairobi, Kenya CC: Date: July 5th 2013 Re: memorandum on the National Police Service Amendment Bill 2013
We wish to enjoin our colleagues in endorsing the attached Memorandum and look forward to your most favourable consideration. Introduction In exercising its mandate The Commission for the Implementation of the Constitution has invited public participation to review the National Police Service (Amendment) Bill and the National Police Service Commission (Amendment) Bills, in the spirit of upholding the principle of public participation under Article 10 of the Constitution. We/I as citizens have taken up this invitation both as my/our Constitutional right and responsibility to give our contributions to the proposed amendments as below.
BACKGROUND In 2010 Kenyans gave themselves a new Constitution that was aimed at redressing the impact of poor governance and its effects occasioned by state failure. Through an all powerful executive, Kenyans were subjected to repressive rule where the instruments of governance were used to subjugate and oppress citizens. Post independence rule was characterised by abuse of power by the executive, human rights violations, proliferation of lawlessness and lives without dignity. It was these conditions that informed the struggle for constitutional reform and ultimately the Constitution that was adopted in 2010.
Constitutional gains – The new Constitution radically altered the centre of power by shifting this from the executive and locating sovereign power on the people. The Constitution provided for this power to be exercised directly or through delegated institutions. Additionally, and in order to check the excesses of the executive the Constitution provided for robust mechanisms for checks and balances. The various institutions created and recognised by the Constitution for purposes of checks and balances were the Parliament (both the national assembly and the senate), the judiciary, independent commissions and independent offices.
Sovereignty of the people – all power is vested in the people The Constitution of Kenya 2010 recognises that all sovereign power is vested on the people of Kenya and they determine how this power is exercised, either directly or through democratically elected representatives. The Constitution also provides for this power to be exercised at national level and county level.
Separation of powers – The Constitution of Kenya 2010 also provided for the separation of powers to guard against the excesses of an all powerful executive and avoid concentration of power in one office. Additionally, the separation of powers allowed for checks and balances on the various arms of government.
Devolution of powers– While the Independence Constitution had provided for devolution of power, this was done away with the amending of the Constitution. The Constitution of Kenya 2010 has also created the provision for power to be exercised both at a national level and at local level through the creation of county structures. Promotion and Protection Human of rights – The Constitution of Kenya 2010 also made provision for the safeguarding the rights of the people through a robust bill of rights that ensured that official powers were not abused or used to violate the rights of and citizens. Values based governance- The Constitution of Kenya 2010 in contrast to the previous Constitution made central the exercise of governance anchored on values and principles and articulated these explicitly in its provisions.
Check & balance mechanisms – In addition to the separation of powers provided for, the Constitution went further to create Constitutional commissions that would be key in the implementation of the Constitution and act as a check mechanism on the arms of government. Amendment of the Constitution – The Constitution of Kenya 2010 also created robust safeguards to the amendment of the Constitution to ensure that these were not done thoughtlessly and any changes to the Constitution were subjected to rigorous processes. Justification The recommendations therefore contained in this memo regarding National Police Service (Amendment) Bill and the National Police Service Commission (Amendment) Bills are premised on the recognition of the sovereignty of the people under article 1, 2, (4) of the Constitution, the values and principles in Article 10 and 232 and the citizen’s responsibility to defend the constitution as called for in article 3. Concerns to proposed amendment bills to the Police Service Act 2011 and Police Service Commission Act I/We note with concern that some of the proposed amendments as contained in the National Police Service (Amendment) Bill and the National Police Service Commission (Amendment) Bills run contrary to the Constitution of Kenya and threaten to erode the gains made as a result of the Constitution.
1)Amendment of the Constitution by changing the mandate of the Police Service Commission and that of the IG In this regard it is noted the amendments are in certain specific areas attempts to vary and re-assign constitutional mandates of the National Police Service Commission by transferring these to the office of the Inspector General, contrary to Constitutional provision.eg the insertion of new section 8 which has the express implication of ignoring any written law and goes ahead and purport to allocate powers and functions of the National Police Service Commission to the Inspector General hence defeating the purpose of dispersing powers for accountability purposes as envisioned in the COK 2010 who is an individual
2)Attempt to limit the role and mandate of the Police Service Commission It is again noted that, the proposed amendment bills heighten the Personalisation of power by transferring and limiting roles and responsibilities from the police service commission to the Inspector General – negating the building of strong institutions to entrench good governance
3)Undermining of Devolution It is noted that by removing provisions in the Police Service Commission Act that require the Inspector General to consult with the County Policing Authorities there is made an attempt to undermine the principles of devolution of power and county governments’ ability to ensure security in their respective counties and govern effectively.
4)Derogation of the principles of human rights By introducing provisions that attempt to justify the use of extra judicial force and limit the rights of officers in the disciplined service the proposed amendment bills derogate the principles of human rights as articulated in the Bill of rights.
5)Disregard of values and principles – These attempts at varying the mandate of the Commission, concentrating power on an individual office or derogating the principles of human rights proposals in complete disregard to the values and principles of governance eat away at the supremacy of the Constitution and threaten to erode the gains made by passing The Constitution of Kenya 2010. Analysis and recommendations On the face of it and read in isolation, majority of the proposed amendments to the acts seem harmless. However upon further scrutiny, and read in tandem with The Constitution of Kenya 2010 the following specific observations and recommendations as in the tables below are made. Conclusion This memorandum has been made in good faith made and made solely by the need to secure the gains brought about by the new constitution which in my/our view the ‘mischief’ in the proposed amendments was intended to undermine.
We are available to send you the entire schedule of our recommendation via email please send us a request for the same from email: eajournal@email.com
Atunga Atuti O.J.
No comments:
Post a Comment