A new Bill seeks to extend the civilian oversight functions of the Independent Policing Oversight Authority (Ipoa) to include crimes allegedly committed by members of the Kenya Wildlife Service (KWS), Kenya Forestry Service (KFS) and Kenya Prisons Service (KPS), and to prevent police officers from investigating crimes allegedly committed by their colleagues.
The Bill notes that, while the National Police Service is under the supervision of Ipoa, no such oversight mechanism has been put in place with regard to officers of the KWS, KFS and KPS who exercise powers of arrest, detention and use of force.
If passed, the Security Services Laws (Amendment) Act, 2023 will place the prisons and wildlife services under the supervision of the Ipoa and strip the Internal Affairs Unit (IAU) of its power to investigate crimes committed by police officers.
“The unit shall not investigate a complaint if the complaint relates to an offence suspected to have been committed by a police officer; and may investigate and recommend appropriate internal disciplinary action in respect of any police officer suspected of unlawful conduct,” the Bill states.
The Bill, called the Security Services Laws (Amendment) Act 2023, proposes that where a complaint is made against a member of the service or an arrest is made in connection with the commission of an offence, a police officer in charge of a station or other post, unit or formation shall notify the authority in writing of such complaint or arrest.
It also seeks to require officers to notify the authority in writing in the event of a death or injury occurring in custody/within the four services in accordance with Section 25 of the IPOA Act.
The Bill requires the officer to take all necessary steps to preserve evidence which may be relevant to the investigation, including photographic evidence, and to provide the Independent Policing Oversight Authority with the evidence and all other facts relevant to the matter, including the names and contact details of any person who may be able to assist the Authority in conducting an investigation. A police officer who contravenes this section commits an offence.
The Bill stems from Ipoa's long-held belief that there is an overlap between its mandate and that of the police in relation to the investigation of crime. In 2021, Ipoa wrote to then Inspector-General of Police Hilary Mutyambai accusing the IAU of conducting parallel investigations, including into criminal matters involving police officers.
“This has led to public confusion, witness fatigue and loss of evidence,” said the letter signed by Ipoa chairperson Anne Makori.
However, in his reply, the IG, citing the NPS Act and the Prevention of Torture Act, said there was nothing to stop the IAU from investigating criminal matters if directed to do so by him and making recommendations for disciplinary and criminal action.
"Having considered your letter in its entirety, it is my objective finding that the unit should not be cited to conduct parallel investigations with a view to undermining the authority's legal mandate, but to complement the work of bringing to an end cases of police excesses," the IG said.
At the time, Mr Mutyambai called on the two units to forge a closer working relationship in bringing to an end cases of police excesses in line with the Standard Operating Procedure for the investigation and prosecution of serious human rights violations committed by police officers.
In two affidavits filed in court last year, the IAU defended itself against accusations of bias by revealing that at the time it was investigating 88 cases involving 112 victims of alleged enforced disappearances allegedly committed by members of the National Police Service.
It added that it was additionally investigating 256 cases of deaths and serious injuries allegedly caused unlawfully by police officers between July and December 2021, with over 141 others actively before the courts, including the alleged enforced disappearance and murder of two Indians, Mohamed Zaidi Sami and Zulfigar Ahmed Khan , and their taxi driver, Nicodemus Mwania, last year, and the case of lawyer Willie Kimani, whose verdict was delivered in February this year.
"It is important to note that during our investigations, we found out that Josphat Mwenda, a motorcyclist and one of the murder victims, had lodged a complaint with the IPOA against Fredrick Leliman, the main accused in the Willi Kimani case. However, no action was taken by the authority which unfortunately led to the abduction and murder of Advocate Willie Kimani, Joseph Muiruri and Josphat Mwenda," reads the affidavit signed by the unit's chief investigator.
The unit also cited other cases where the Ipoa has relied on it to advance its investigations, such as the Kianjokoma brothers case.
The National Police Service Act mandates the police to investigate all types of crimes and also mandates the Ipoa to investigate crimes committed by the police.
"As such, there is an overlap in the mandate of the [Directorate of Criminal Investigations] and the Ipoa to investigate extrajudicial killings and enforced disappearances. There is also an apparent conflict because the police cannot effectively investigate extrajudicial killings and enforced disappearances allegedly caused by the police," said a report by the former Senate Committee on Justice, Legal Affairs and Human Rights.
The report recommended that the Attorney General initiate the establishment of an inter-agency taskforce comprising representatives from the NPS, ODPP, IPOA, National Police Service Commission (NPSC), Kenya National Commission on Human Rights (KNCHR) and the 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 also recommends that the mandate of the IPOA be expanded to include investigations into rogue officers in the Kenya Wildlife Service, Kenya Forest Service, Kenya Prisons Service and Kenya Coast Guard.
