Police commanders should be liable for deaths during protests

Lawmakers have thrown their weight behind a proposal by the Independent Policing Oversight Authority (IPOA) to hold police commanders personally liable for negligence and abuse of power during protests and other public gatherings.

The proposal by IPOA also expands the scope to instances that lead to deaths, serious injuries, or sexual violence.

Appearing before the National Assembly Committee on Administration and Internal Security, IPOA argued that police commanders are the ones who make key decisions such as how officers are deployed.

They also decide which tactics are used, the rules of engagement, and how operations are supervised and any decisions that are poorly made increase the likelihood of harm to the public.

The proposal was part of the major reforms IPOA seeks to implement to ensure accountability in the policing system amid sustained pressure from the public for police officers to take responsibility for their conduct during protests and gatherings.

It also noted that there was a need to address the legal and operational gaps in how public order situations are currently managed.

During the meeting at Sarova White Sands Hotel, MPs sitting in the Committee on Administration and Internal Security also agitated for clearer lines of responsibility within the police command structure as well as stronger measures to prevent misconduct by officers.

Narok West MP Gabriel Tongoyo, while noting that existing laws already provided for some level of accountability for officers in charge, challenged IPOA to clearly identify the specific gaps that require new laws or amendments.

“In my mind, we already have provisions under the National Police Service Act assigning responsibility, especially to officers commanding stations. What we need now is a clear mapping of what exists, where the gaps are, and what exactly needs to be fixed,” Tongoyo said.

IPOA Commissioner Kenwilliam Nyakomitah however told the committee that existing laws only require senior officers to report misconduct after it occurs, leaving a critical gap in prevention. He warned that the current legal framework falls short in holding senior officers accountable for preventing misconduct.

“There is currently no criminal sanction for a superior officer who fails to prevent misconduct. A superior officer may know what is being planned and what is likely to happen, but the law does not compel them to act to stop it. That is the gap we must address,” stated Nyakomitah.

“If a superior officer fails to act despite having knowledge, then there should be consequences. That would ensure these incidents do not occur in the first place…the law should impose clear duties on commanders to prevent, repress and report misconduct,” he added.

The House team also brought into sharp focus the role of the Internal Affairs Unit (IAU) within the National Police Service, with IPOA admitting that the unit had failed to effectively handle complaints against officers. This, coupled with the fact that it had become dysfunctional and lacked public trust.

IPOA Director of Complaints, Ruth Kaguta, brought to the fore that more than 70 per cent of complaints received by the authority relate to police conduct and could be resolved internally, if the Internal Affairs Unit were fully functional. She regretted that efforts by IPOA to collaborate with the unit had been futile.

“Unfortunately, the unit is almost dysfunctional. Frequent leadership changes, lack of independence, and public distrust have made it difficult for us to collaborate or offload cases,” noted Kaguta, adding that the numerous changes at the unit had hampered the effective dispensation of justice. “There have been constant leadership changes, and in some instances we are told meetings cannot even take place due to reorganisations,” she said.

The Authority was also convinced that the unit’s placement under the office of the Inspector General undermines its independence and, by extension, public confidence. “Complainants come back to us saying they do not trust how their cases are handled. The unit is not independent, and that affects its credibility,” added Kaguta.

The House team and IPOA also took the opportunity to poke holes into various proposals contained in the draft Public Order Management Bill.