Our attention has been brought to the National Assembly's proposed amendment to Section 7(1) a (vii) of the IPOA Act on the Statues Law (miscellaneous amendments) Bill 2016. Section 7(1) (vii) of the Act provides the Authority with the power to "summon any serving or retired police officer to appear before it and to produce any document, thing or information that may be considered relevant to the function of the authority. The proposed amendment however, seeks to amend this section by inserting: "...provided that where the document, thing or information is privileged, the procedure for producing privileged document, thing or information shall be complied with."
We, the undersigned governance and human rights organizations working under the auspices of the Police Reforms Working Group -Kenya (PRWG-K) strongly protest this amendment that is being proposed on the following grounds:
- Under the literal rule of statutory interpretation, these words of the proposed amendment seek to limit the documents, things or information that can be shared with IPOA by officers or persons summoned to appear before the authority, and which will hinder IPOA's mandate, and also go against Article 35 of the Constitution of Kenya by denying the public its' right to information.
- We would like to remind members of the National Assembly that the Evidence Act, Cap 80 of the Laws of Kenya (section 131, 132 and 139) clearly provides for the procedure of submitting privileged documents, thing or information. There is no justification for the proposed amendment in the Bill, nor any indications of the mischief that it intends to cure. This goes against one of the cardinal principles in law making which requires legislation to address a mischief or seal the existing gaps in the law. It has not been shown how the current framework that is sought to be amended impedes policing or the work of IPOA.
- IPOA's mandate is important and forms a critical part of the police reforms geared towards attaining the objects of Article 144 of the Constitution. The proposed amendment contravenes the constitution, and also violates Section 4 of the Act which states that IPOA is not subject to any person, office or authority in the performance of its functions. In addition to that, Section 6 of the Act provides that the only way the authority can commence investigation is through receipt of information from the members of the public and members of the service. If such information is not forthcoming, the work of the authority is effectively curtailed.
IPOA is a civilian movement, created by public interest and public views collected by the Police Reform Implementation Committee (PRIC). It is therefore self-defeating to declare information shared with them as being protected by public interest. In this regard, the proposed amendment is unmerited, irreconcilable with public interest, lacks the necessary threshold and in effect immobilizing to the authority.
- The Authority MUST have ample authority to provide a credible service to the people it serves. It MUST have the ability to interview all witnesses, including officers, and it MUST have access to all relevant documents needed to complete its investigations in order to be effective, and maintain the support of the people it serves.
- Finally, it is noteworthy that independence is at the heart of effectiveness of any oversight body such as IPOA. Without the political will to support independent oversight, the authority will flounder in its efforts to make the necessary changes to correct problems in the law enforcement agency that it oversees. In order for the authority to succeed, we BESEECH legislators at all levels to come out and jealously guard and uphold the constitution, resist attempts to introduce amendments aimed at satisfying individual egos rather than the greater public good and reject the proposed amendment in totality.