Why We Should Give Kimaiyo The Benefit Of Law

“The easiest way to gain control of a population is to carry out acts of terror. The public will clamour for such laws if their personal security is threatened.” This quote, regularly attributed to the Russian tyrant and mass murderer, Josef Stalin, should give Kenyans pause as we demand that the government take action to address the massive failure in security that the country is experiencing.

That there has been a near complete breakdown in the security system is beyond doubt. Citizens are being murdered with relative impunity along our borders and at the coast, and the resource-related ethnic violence raging unabated across the north has not spared even security officers. In the capital, women are afraid to walk the streets or take public transport for fear of assault by mobs of men and in Baringo, girls are openly subjected to illegal Female Genital Mutilation. Our wildlife sanctuaries have been turned into killing fields and despite the government knowing the people responsible for poaching, it continues unabated. In fact, according to one investigative report aired on KTN earlier this year, the poaching kingpins are being actively protected by the state.

Our security system is failing, and it is failing comprehensively. But in government circles, there seems to be a real reluctance to admit this. The standard response has been to claim that the security forces are actually doing a great job, that they have prevented numerous attacks (no details provided, of course), that the terrorists have been defeated (whatever that means) and clichéd promises of “beefing up security.”

It is clear that these excuses are wearing thin and the public can now see through them. The transparent attempts to pass off public relations spiel as serious security policy no longer works. Across the country, citizens are scared and are demanding that the government get its act together and protect them as it is sworn to do. However, recognising there is a problem is the easy part. Diagnosing what is causing that problem and coming up with a remedy that will not turn out to be worse than the disease is more difficult. The hardest part of all will be getting the patient to actually take the medicine.

Let’s take an example from our past. In the years and decades following the initial euphoria of independence, many Kenyans came to the realization that the state had turned rogue. It had not changed the colonial ethos and remained a parasitic entity, benefitting a few at the expense of the many. Its security forces, while nominally meant to protect the citizenry, in reality continued their colonial function of policing them. The security agencies were implicated in many abuses, including extra-judicial killings and assassinations, torture and disappearances.

As a result, when, following decades of agitation and resistance, the opportunity to negotiate a new social contract was achieved, one of the paramount objectives was to create a system that would make the security organs serve the interests of the people rather than those of the people in power. Thus the new constitution required that the National Police service be independent and gave its head, the Inspector General of Police, security of tenure. The President cannot fire him on a whim. Neither can he direct the IGP in how to enforce the law or tell him whom to arrest and whom not to.

In return, it was hoped the police service would exercise its mandate without fear or favour. In practice this has not turned out to be the case. The patient has refused to take the medicine. Police reforms have stalled and where we have laws, such as the National Police Service Act, they have failed to be properly and fully implemented. Similarly, laws requiring that Parliament authorize any deployment of the Kenya Defense Sources within the nation’s borders, which were designed to avoid the sorts of abuses recorded in the report of the Truth, Justice and Reconciliation Commission, have been regularly circumvented.

Thus, it is clear that we have a security crisis and that part of the problem stems from the unwillingness to implement the laws that sit in the books. However, we will need to do some more digging and thinking if we are to understand the scale of the problem we face and to come up with workable solutions. This is why it is imperative that we support the demand made the Occupy Harambee Avenue protesters on Tuesday, that the President fulfil his promise to institute a public commission of inquiry into the security failures. Such an inquiry should take a holistic look at the entire security architecture in the light of the threats and challenges that confront us and make recommendations.

In the desire for results, we must avoid being stampeded back into the era of dictatorship. Some have suggested changing the law to make it easier to fire the IGP, David Kimaiyo. Such a proposal has been made in the National Assembly by the Jubilee Chief Whip, Katoo ole Metito and by the Chair of the Departmental Committee on Administration and National Security Committee, Asman Kamama.

Whatever one may think of Mr Kimaiyo’s performance, we must guard against attempts to reintroduce the imperial presidency. It is better that we insist of the procedure to remove him, which involves petitioning Parliament and the formation of a tribunal, and more important to figure out why the IGP has not taken advantage of the independence afforded to his office to streamline the force and make it more responsive to citizen concerns.

I will end with an excerpt of a dialogue between Sir Thomas More and his daughter's suitor, William Roper, as set forth in Robert Bolt's two-act play, A Man For All Seasons, which I think illustrates the folly of chopping down the laws that protect us in an attempt to get at both the terrorists and the incompetent and negligent officials who enable them.

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.