THE INDEPENDENT POLICING OVERSIGHT AUTHORITY

____________________________________________

MONITORING REPORT ON OPERATION SANITIZATION EASTLEIGH

PUBLICALLY KNOWN AS “USALAMA WATCH”

_________________________________________________

1

THE INDEPENDENT POLICING OVERSIGHT AUTHORITY

1. 0 Background

In October 2011, the Government of the Republic of Kenya launched a security operation code-

named Operation Linda Nchi (literally, Operation Keep the Country Safe) against the Al- Shabaab terrorist group who were believed to be behind a spate of terror attacks and kidnappings of several foreign tourist and aid workers within the Republic of Kenya. The terrorist attacks which had then been largely concentrated in North Eastern Kenya and Coastal region areas bordering Somalia had targeted Police Stations, foreign aid workers night clubs and other lucrative tourist sites along the coast of Mombasa. The operation which would see the Kenya Defence Forces (KDF) deployed right inside Southern Somalia was a joint coordinated mission between the Kenyan and the fledgling Somalia government which had also been fighting the terrorist group for a while without success.

However, while the incursion into Somalia to stabilize the country and secure Kenyan borders has

largely been successful, a number of terrorist attacks that have subsequently rocked various parts of the Country, including the Cities of Nairobi and Mombasa have still been traced to the Al Shabaab terrorist group which is believed to have retreated and now operates from deep inside Somalia.

As it were, a number of these attacks occurred within the locality of Nairobi’s Eastleigh Estate, a

suburb largely inhabited by Kenyan Somalis and which, security sources apparently believe, also plays host to a large number of illegal immigrants from Somalia. In one such attack on 31st March 2014 for instance, three massive explosions occurred simultaneously within the Estate, killing 6 people and injuring 31 others.

As a result of the growing insecurity, on 5th April 2014, the government launched a second internal

security operation dubbed OPERATION SANITIZATION OF EASTLEIGH, which was to be carried out under the aegis of the National Police Service. This Operation was largely designed to be carried out around Eastleigh Estate and other areas perceived to be hideouts for illegal immigrants. According to documents availed to the Authority, the declared purpose of this new Operation was to flush out Al- Shabaab adherents/aliens and, search for weapons, improvised

2

THE INDEPENDENT POLICING OVERSIGHT AUTHORITY

explosive devices (IEDs)/explosives and other arms so as to detect, disrupt and deter terrorism

and other organized criminal activities.

As the Operation got underway, there emerged widespread media reports of alleged ethnic

profiling of certain ethnic groups, as well as unlawful detention and deportations carried out by the Police. In addition, there was criticism from a section of the public who were concerned that the operation had infringed on their fundamental human rights and that to a larger extent, it had been skewed towards specific segments of the society. The Operation was further marred by widespread allegations of corruption where members of the public were allegedly forced to part with bribes to avoid being arrested and/ or detained in unclear circumstances; arbitrary arrests, harassment, assault, unlawful detentions and deportation of individuals.

2. 0 IPOA Powers and Mandate

The Independent Policing Oversight Authority (hereinafter IPOA or the Authority), is established

pursuant to the Independent Policing Oversight Authority Act (Act No. 35 of 2011), an Act of Parliament whose main function is to provide for civilian oversight over the work of the Police.

The Objectives of the Authority as set out in Section 5 of the Act are to:

“(a) hold the Police accountable to the public in the performance of their functions;

(b) give effect to the provision of Article 244 of the Constitution that the Police shall strive for

professionalism and discipline and shall promote and practice transparency and accountability;

and

(c) ensure independent oversight of the handling of complaints by the Service.”

In order to ensure the achievement of these objectives, the Authority is empowered under Section

6 of the Act to carry out a number of functions. These include:

i) To investigate any complaints related to disciplinary or criminal offences committed by

any member of the Service, whether on its own motion or on receipt of a complaint, and make recommendations to the relevant authorities, including recommendations for

3

THE INDEPENDENT POLICING OVERSIGHT AUTHORITY

prosecution, compensation, internal disciplinary action or any other appropriate relief,

and shall make public the response received to these recommendations;

ii) monitor and investigate policing operations affecting members of the public;

iii) conduct inspections of Police premises, including detention facilities under the control of

the Service;

iv) review the patterns of Police misconduct and the functioning of the internal disciplinary

processes;

v) Make recommendations to the Service or any State organ.

Given its mandate and powers as outlined above, and arising from the many concerns raised by

the media and individual complainants who visited the Authority’s offices during the concerned period, the Authority set out, pursuant to its mandate aforesaid, to inspect and monitor all the operations conducted by the National Police Service during the OPERATION SANITIZATION OF EASTLEIGH with a view to ascertaining the veracity of the complaints received.

In carrying out this inspections and monitoring exercise, IPOA was always alive to the fact that

the National Police Service is an independent institution constitutionally empowered to carry out its functions and operations without undue interference from any source. The inspections and monitoring exercise did not therefore seek to question the powers of the Police to independently undertake their functions; it only sought to ensure accountability for the manner in which the exercise was conducted.

3. 0 Methodology

The IPOA inspections and monitoring team used direct interview approach in seeking information from

members of the general public, detainees and Police officers. The team also visited the affected areas and observed first- hand the conduct of the operation and obtained photographs to illustrate the state of affairs in the Police Stations and the screening centres. IPOA monitors and inspectors also visited Kasarani, Pangani, Buruburu, Industrial Area, Gigiri and JKIA Police Stations, Eastleigh Residential area and

Kasarani screening center in order to inspect and monitor the conduct of the operation and its impact.

4

THE INDEPENDENT POLICING OVERSIGHT AUTHORITY

4. 0 Observations

Based on the inspection and monitoring exercise conducted during the OPERATION SANITIZATION OF

EASTLEIGH by the IPOA monitoring team, the following observations were made:

4. 0.1 Detention facilities/Centers: The detention facilities, in particular washrooms at Industrial

Area, Buru Buru, Kasarani and JKIA Police Stations were very dirty with some having blocked drainages. Similarly, except JKIA and Industrial Area Police cells, the other stations’ detention facilities (cells) were in in very deplorable conditions. There appeared to have been little or no efforts made to clean the detention facilities. There were also allegations of lack of proper coordination in relocation of the detainees to the various Police Stations resulting into overcrowding of cells at some of the Police Stations. For instance, the team established that the cell capacity at JKIA Police Station is 30 detainees. However, on the night of 8 April 2014, JKIA had 92 detainees. Similarly, the cell capacity at Kasarani Police Station is approximately 100, however, on 16 April 2014, the station had 214 detainees. While the cell capacity at Pangani Police Station is approximately 80, on 8 April 2014, the station had 152 detainees. This forced some of the detainees to spend the night in the cold within the Station and it was alleged some had to stand the whole night in the cells due to limited space. This was a clear indicator of poor planning and coordination of the operation. In some instances, detainees complained of insufficient food. In Kasarani, JKIA and Industrial Area Police Stations, children and adults were confined in the same cells.

4. 0.2 Unethical Conduct of Police Officers: Interviews with members of the general public,

those at the detention facilities and complaints received at IPOA indicated that the operation created avenues for rogue Police Officers to engage in extortion activities. There were allegations of people with valid documents being arrested in violation of their fundamental rights and freedoms. Some detainees alleged that police officers engaged in corruption during their arrest and transportation to Police Stations. It was further claimed that some detainees secured their release along the way and at Police Stations after allegedly bribing the officers. Others alleged that in some estates, the Police openly asked for bribes so as not to search some buildings. Some detainees alleged the practice of releasing detainees along the way or at the Stations resulted into some of them being arrested twice.

In addition, allegations abound of Officers in plain clothes conducting arrests and taking victims to

dark alleys to forcefully demand bribes before release. Also, it was alleged that unlike at the onset

5

THE INDEPENDENT POLICING OVERSIGHT AUTHORITY

of the Operation, where the GSU officers were not openly demanding bribes, as the Operation went

on, GSU officers were no different from the regular and Administration Police. The monetary value of the bribes depended on whether a detainee or suspect had valid identification documents or not. The reported allegations indicate the bribes ranged between Kshs. 1,000 to 20,000. Relatedly, there were complaints of detainees being beaten during arrests and at Police Stations. The detainees and members of the public further complained of harassment, being roughed up, inappropriate touching and demand of receipts for household items such as electronics and other home appliances. Failure to produce receipts resulted into either confiscation of the goods, arrest or extortion of bribes. IPOA

was unable to independently verify these allegations. However, it is conducting further

investigations into Twenty Nine (29) complaints on harassment, extortion and assault, emanating from the operation with a view to recommending criminal prosecution where it finds the allegations to be substantiated.

4. 0.3 Record Keeping: The IPOA team flagged out poor record keeping at the Police Stations

visited. For example, in Kasarani and Buru Buru Police Stations, the detainees’ particulars were recorded in loose papers as opposed to the Occurrence Book (OB) and the cell register. The officers responsible alleged that the information would be transferred to the OB and cell register at a later stage. The poor record may have kept open avenues for extortion and illegal detentions.

4. 0.4 Lack of Proper Coordination/Supervision of the Operation: The IPOA team established

there was very poor coordination of the operation. A case in point was the process of searching residential areas where a building would be searched severally by different groups of Police Officers in the course of the day or at night. Junior officers seemed to lack close supervision and guidance. As a consequence, there were several complaints of alleged human rights violations and extortion reported during the search. Members of the public informed the IPOA team that Police Officers with unmarked vehicles especially at night were taking part in the operation with a view to extorting money from the public. These officers effected arrests and released the victims on the way to the Police Station or at the entrance of the Police Stations after receiving bribes. There were allegations that Pangani Police Station was one of the notorious Stations where such under dealings thrived unabated. There were also allegations that the operation had become a major opportunity for bribe-taking and harassment by the Police. IPOA is currently investigating 29 cases of extortion relating to the operation, with a view to recommending prosecution and disciplinary action for errant officers, where the allegations, as per our investigations, prove to be factual.

6

THE INDEPENDENT POLICING OVERSIGHT AUTHORITY

4. 0.5 Community Policing Jeopardy: The OPERATION SANITIZATION OF EASTLEIGH

seems to have antagonized a segment of the local community in Nairobi’s Eastleigh Area where it was concentrated, to the extent that members of the said community would flee and lock themselves up in houses whenever they sighted Police vehicles or officers. This development is counter- productive to the spirit of community policing and may erode the gains made in the public-police partnership in the fight against crime. There seemed to exist evident mistrust of the Police by a segment of residents in Eastleigh Estate.

According to the members of the public and interviews with the people arrested or detained, the

operation was viewed as skewed towards specified a residential area (s) and segment of the society. This elicited feelings or perception of targeted bias or discrimination from members of the dominant Somali community. This perception was also informed by the deportation of a large number of persons of Somali extraction to Somalia. According to documents availed to IPOA a total of 332 persons of Somali ethnicity had been deported to Mogadishu, Somalia as at 24th May 2014.

There were also allegations of forceful deportations of Somali refugees and asylum seekers to

Somalia in contravention of the refugee principle of non-refoulement, provided under Article 2 (3) of the 1969 Organization of African Union (OAU) Convention Governing Specific Aspects of Refugee Problems in Africa, to which Kenya is a signatory and Article 33 of the 1951 Refugee Convention. The Authority was however unable to independently ascertain the veracity of these allegations.

4. 0.6 Violation of Constitutional Guarantees: The Constitutional limit of 24 hours, within

which arraignment in court should be done for persons under arrest had been grossly violated during the operation. Kasarani, JKIA, Buru Buru, Industrial Area and Shauri Moyo Police Stations had detainees held for over 24 hours beyond the Constitutional limit.1 For instance, on the 16th April 2014, Kasarani had 184 detainees held over 24 hours. Also on 14th April 2014, Industrial Area Police Station had 54 detainees held over 24 hours. From the interviews conducted, some detainees indicated they had been held in custody for more than fifteen days without being arraigned in a court of law. They alleged to have instead been shuttled between Police Stations, Kasarani screening center and JKIA.

5. Findings

Following the hitherto unprecedented increment in terrorist attacks in Nairobi, Mombasa and other parts of the country, and the accompanying rise in general insecurity in the country, OPERATION SANITIZATION OF EASTLEIGH was launched on 5th April 2014 ostensibly for purposes of preserving the national security of the Republic of Kenya. Article 238(1) of the Constitution defines “national security” as the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity and other national interests. Given the high number of explosions from IEDs and hand grenades targeted at Passenger Service Vehicles, Churches and other social places in recent times, there was a growing feeling of absence of Government and hopelessness within the general populace and it was therefore incumbent upon the Government to take urgent steps to stem the growing insecurity.

In this regard, OPERATION SANITIZATION OF EASTLEIGH was designed to be part of the national effort in the fight against terrorism and was intended to feed into the long term national strategic security plans. Article 239(1) of the Constitution creates three national security organs whose primary object is to promote and guarantee national security. These are listed as:

a) the Kenya Defence Forces;

b) the National Intelligence Service; and c) the National Police Service.

As one of the listed national security organs, the National Police Service was expected in

undertaking the lead in this operation to strictly observe Constitutional provisions meant to safeguard the public interest during such operations. Cognisant of possible abuses in the past, Article 238 (2)(b) of the Constitution stipulates that national security shall be pursued in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms.

As noted under IPOA powers and mandate, Section 5 of the Independent Policing Oversight Authority Act, No. 35 of 2011, (IPOA Act) requires the Authority to hold the Police accountable to the public in the discharge and performance of their functions. The same section requires the Authority to give effect to the provisions of Article 244 of the Constitution which requires that the

National Police Service shall:

a) Strive for the highest standards of professionalism and discipline among its members. b) Prevent corruption, promote and practice transparency and accountability.

c) Comply with constitutional standards of human rights and fundamental freedoms.

d) Train staff to the highest possible standards of competence and integrity and to respect

human rights and fundamental freedoms and dignity; and

e) Foster and promote relationships with the broader society.

It is in light of the foregoing Constitutional requirements that IPOA carried out this inspections and monitoring exercise. The findings of this Report are thus grouped mainly within the framework of compliance with the fundamental Constitutional guidelines regulating the exercise of power by the National Police Service during the national security operation dubbed OPERATION SANITIZATION OF EASTLEIGH. It was IPOA’s position that in carrying out this national security operation, the National Police Service and any security organ that was involved therein were bound by the clear underpinnings enumerated under Articles 238 – 244 of the Constitution.

5. 1 Discipline and Professional Standards

The Constitution requires the Police to be professional in all their undertakings. This includes carrying out

their mandate in accordance with the Constitution and any legislation regulating their conduct such as the NPS Act and the Schedules thereto and their own rules including the Standing Orders.

The IPOA monitoring team however found out that in certain instances, various aspects of the operation were carried out without adherence to the laid down statutory requirements, rules and procedural regulations. The Authority therefore finds in the aspects discussed below that the operation was carried out without adherence to discipline and professional standards:

a) Planning, Coordination and supervision:

Pursuant to the Fifth Schedule to the NPS Act, Rule 5(a) and (b), lock- up facilities are required to have hygienic conditions conducive for human habitation and adequate light, toilet and washing facilities and outdoor area. However during the operation, IPOA monitoring teams found that the capacity level of detention facilities was rarely abided to. Most of the detainees were subjected to congested cells. For instance as noted in the observations, while the cell capacity at Kasarani is approximately 100 detainees, on 16th April 2014 the Station had 214 detainees. Further, whereas the cell capacity at Pangani is approximately 80 persons, on 8th April 2014 the Station had 152 detainees. Consequently some detainees spent the night in the cold within the detention facilities and further, there were allegations that some detainees spent the whole night standing in the cells due to limited space. This pointed to a lack of proper planning and coordination that would have ensured more lock up facilities were made available to ensure detainees were not subjected to such congested and inhumane conditions of standing the whole night.

The monitoring exercise also established that there was no proper liaison and coordination between the various units of the NPS. For instance as noted in the observations, in the process of searching residential areas, a building would be searched several times by different groups of Police Officers, whether by the Administration Police Service (APS), the General Service Unit (GSU) or the Kenya Police Service (KPS), during the day or the night. This certainly greatly inconvenienced members of the public who were forced to wake up several times to open their doors and/or premises for inspection.

Moreover, there were many allegations received by the IPOA inspections and monitoring teams of Police Officers receiving bribes to release persons before they got to Police Stations and of Police Officers without uniforms or identification documents arresting persons and demanding bribes. These incidents point to a clear lack of close supervision of junior officers by their seniors in violation of the NPS Act and Police operational guidelines.

b) Record-keeping: As noted in the observations, the monitoring revealed that in most stations,

including Safaricom Kasarani Stadium there was very poor and unsatisfactory record-keeping. The detainees’ details were first recorded in loose papers rather than the OB and the cell register as required in the standing orders. Although the Authority could not independently verify allegations that the same was deliberately aimed at extorting money and seeking bribes from persons arrested, failure to keep such records did indeed open avenues where such practice could have taken place.

As noted in the observations the Authority is currently conducting investigations on complaints regarding extortion arising from the operation, with a view of recommending prosecution and disciplinary action of errant Police Officers, where the allegations are found to be grounded in facts.

5. 2 corruption, competence and integrity

The NPS is required under Article 244 of the Constitution to ensure that within its ranks it prevents

corruption, and promotes and practices transparency and accountability. In addition, the Police are to be trained to uphold the highest standards of competence and integrity and to strive to the highest standards of professionalism to ensure that they are competent to undertake their work, and also be beyond reproach.

As noted in the observations however, the IPOA monitoring teams received many allegations of police officers seeking bribes and the Authority is currently conducting investigations into complaints on extortion arising from this operation. That said however the numerous allegations of bribery during the operation require the NPS to also pay particular attention to recommendations made in this Report regarding corruption and conducts its own internal assessment and audit of the operation to ensure in future operations there is strict monitoring to arrest cases of corruption that may even imperil the security of the country.

Further, there were complaints of detainees being beaten during arrests and at Police Stations. The detainees and members of the public further complained of harassment, being roughed up, inappropriate touching and demand of receipts for household items such as electronics and other home appliances. Failure to produce receipts, to the members of the NPS, resulted into either confiscation of the household goods, illegal arrest or extortion of bribes by the officers. While the Authority was unable to independently verify some of these claims during the monitoring process, it is investigating several complaints on harassment and assault with a view of recommending both disciplinary action and prosecution of individual Police Officers involved where the allegations are found to be factual.

5. 3 Compliance with Human Rights Standards

The Constitution at Article 19 (2) provides that “the purpose of recognizing and protecting human rights

and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.” The findings indicate that the National

Police Service failed to comply with the following human rights standards during the operation:

5. 3.1 Rights of arrested persons. Article 49 (f) of the Constitution of Kenya requires that an

arrested person is brought before a court of law as soon as possible but not later than Twenty Four (24) hours after arrest. This right applies to any person and is not pegged on citizenship. As noted in the observations, the IPOA monitoring team found that some persons were detained beyond the Constitutional requirement of Twenty Four hours, in some cases with detainees being held up to fifteen days before being brought before a court of law. Consequently, IPOA finds that the National Police Service violated the rights of arrested persons during the operation, when it failed to bring persons arrested during the operation before a court of law within the Constitutional time frame.

5.3.2 There were widespread allegations that the rights of persons not to be deprived of their

liberties arbitrarily, or without a just cause, were violated when the NPS arrested persons with valid and credible national and related travel / immigration documents (whether Kenyan or otherwise), when they detained them by shuttling them to various Police Stations or detention facilities; or even when they locked them up in various Police Stations and detention facilities. These allegations if found to be true would amount to a violations of Article 29 of the Constitution. However, there were no direct observations to support these allegations. IPOA cannot therefore confirm for now whether or not the persons in question really had valid and credible documents. Given the widespread nature of the claims however, it would be prudent that the Internal Affairs Unit of the NPS consider carrying out an in-house assessment of the prevailing situation with a view to forestalling any such occurrences in future as per the recommendations made at the end of this Report.

5. 3.3 The right to human dignity. The Constitution of Kenya, at Article 51 (1) recognizes that

persons detained still retain rights and fundamental freedoms set out in the Bill of Rights except where the same is incompatible with the fact of detention or incarceration. These rights include, the right to human dignity (Article 28) which entails the right to have that dignity respected and protected, and the freedom and security of the person which entails the right not to be treated in an inhumane or degrading manner [Article 29 (f)]. Article 51 further requires Parliament to enact legislation to provide for the human treatment of persons detained or held in custody or imprisoned. The National Police Service Act in giving effect to this Constitutional requirement, at Rule 5 (a) of the Fifth Schedule to the Act on the conditions of lock-up facilities, requires such lock up facilities

to have, amongst other things, hygienic conditions conducive for human habitation. As noted by the IPOA monitoring teams, Industrial Area, Buru Buru, Kasarani and JKIA Police Stations were

very dirty, and detainees were thus held in unhygienic conditions. Consequently, IPOA finds rights

of these detainees held in these Police Stations, to human dignity, and not to be treated in an inhumane or degrading manner, were violated as they were held in dirty unhygienic conditions.

3.4 Right of children to be detained separately from adults. Pursuant to Article 53(1) (f)

(ii) of the Constitution of Kenya 2010 and Rule 5 (d) of the Fifth Schedule to the NPS Act, children are to be detained separate from adults. As per observations by IPOA inspections and monitoring teams as above noted in Kasarani, JKIA and Industrial Area Police Stations, children and adults were confined in the same cells in contravention of these provisions. Consequently, IPOA finds, the NPS violated the right of these children to be held separately from adults.

3.5 Freedom and security of the person. Article 29 of the Constitution provides for freedom

and security of the person. This right includes, the right not to be subjected to any form of violence either from public or private sources. Although the Authority is yet to independently verify the allegations made regarding beatings, inappropriate touching and harassment during arrests, the large number of allegations made may point to a systematic violation of this right during the Operation. However, IPOA is currently conducting investigations into complaints on amongst others harassment and assault by Police Officers during this operation and where they prove well founded in facts, the Authority will recommend both disciplinary action and criminal prosecution for individual Police Officers involved.

3.6 Equality and freedom from discrimination. Article 27 (4) stipulates that the State shall

not discriminate directly or indirectly any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, age, disability, religion conscience, belief, culture, dress, language or birth. Consequently a Police operation specifically targeted against persons of a certain ethnic group would fall afoul of this provision. It is apparent from documents availed to the Authority that the National Police Service considered Eastleigh Estate and its suburbs to provide a conducive environment to hide illegal immigrants and even Al Shabaab operatives from Somalia. This environment would, in their view, also be conducive for the preparation and execution of the terrorist attacks.

Documents availed to the Authority indicate that as at 24th May 2014, a total number of 2724 persons had been screened by the Police. Out of this number, 322 were listed as Kenya Somalis while 293 were listed as Other Kenyans. This dichotomy of listing members of the Somali ethnic group from “other Kenyans” must have fuelled the accusation labeled against the Police of ‘ethnic profiling’ as it meant that for purposes of identification, those labeled as ‘Kenya Somalis’ were kept separate and distinct from the ‘other Kenyans’. While IPOA did not find sufficient evidence to characterize what happened during the Operation as ‘ethnic profiling’, this is an area of concern that the National Police Service should pay particular attention to as per recommendations made in this Report.

5.4 Training on Human Rights

Article 244 (c ) of the Constitution requires the Police to comply with Constitutional standards of human

rights and fundamental freedoms. In recognition of the fact that the Police can only enhance compliance with such standards if they are properly conversant therewith, Article 244 (d) requires the National Police Service to train all its staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity. The hue and cry generated by the manner in which the Operation was carried out is however, a clear manifestation that the Police are yet to internalize the fundamental rights and freedoms enshrined under the Bill of Rights at Chapter 4 of the Constitution.

5.5. Foster Relationships with the Broader Society

The Constitution requires the NPS to foster and promote relationships with the broader society. This

obligation, draws from a historical context where the relationship between the former Kenya Police Force and the general public was underpinned by antagonism, and general mistrust and fear of the Police by the general public. Given that the Police have for a long time been viewed with mistrust and suspicion, it comes as no surprise that the new Constitutional expectation on the NPS is that it is seen to be working with, and to protect the human rights of, the people of Kenya. The NPS is therefore required, pursuant to the Constitution and the NPS Act to foster relationships, and work with, various communities from its recruitment processes in executing its mandate.

The findings however indicate, the NPS failed to meet this Constitutional obligation, with regard to the

OPERATION SANITIZATION OF EASTLEIGH, especially with regard to the Somali community in Eastleigh Area. The operation appears to have antagonized a segment of the local community, particularly of Somali ethnic or social origin, in Nairobi’s Eastleigh area, to the extent that they would flee and lock themselves up in houses whenever they sighted Police vehicles or officers. According to IPOA observations and interviews with persons in Eastleigh Estate and its environs, there is evident mistrust of the Police by a segment of residents.

Records obtained by the IPOA team indicated that out of a total number of 2724 people screened as at 24th

May 2014, more than half the number, that is 1474 people, were ethnic Somalis. Again, out of a total of 481 people who had been deported as at the time, 332 were Somalis deported to Mogadishu. While this large number of Somalis may have been contributed to by the large number of ethnic Somalis resident in the areas targeted, it certainly contributed to the widespread feeling of alienation and discrimination among this group

This situation is counter-productive to the spirit of community policing and may erode the gains made in the public-police partnership in the fight against crime. It is IPOA’s firm position that the Police cannot be able to foster relationships with the broader society where its operations engender a feeling of ethnic profiling. Unfair policing shapes the view of Police as biased and untrustworthy and generates reluctance to cooperate with Police Officers, a fact which in turn undermines efficiency in profound ways.

The main objective of community policing is to enhance community partnerships within the context of the Peelian Policing Principles. The Peelian Principles basically recognize that the Police are exercising their powers to police fellow citizens with the implicit consent of their fellow citizens. Members of the National Police Service are therefore encouraged to recognize and embrace the fact that the legitimacy of policing in the eyes of the public is based upon a general consensus of support that follows from transparency about their powers, demonstrating integrity in exercising those powers and their accountability for doing so.

6.0 Recommendations

Arising from the observations and findings from the inspections and monitoring of the OPERATION

SANITIZATION OF EASTLEIGH as hereinabove contained, and pursuant to its mandate as outlined under Section 6(k) of the Independent Policing Oversight Authority Act, No. 35 of 2011, the Authority makes the following recommendations.

6.0. 1 Under Section 10(l) of the National Police Service Act, the Inspector General of Police is

required to provide a command structure and system of the Service for the efficient administration of the Service nationally. It is the Authority’s view that this structure should be organized taking into account command and control in that there should be a specific officer in charge of an area of operation whether Kenya Police Service or Administration Police Service and ensuring there is no doubt as regards command at all levels. It is therefore IPOA’s firm recommendation that the Inspector General of the National Police Service should immediately institute measures to put in place a seamless structure of the Service at all levels to avoid a recurrence of the situation witnessed during OPERATION SANITIZATION OF EASTLEIGH. The Inspector General of the National Police Service should furnish IPOA with a report on the measures instituted within 90 days.

6.0.2. Harmonization of the National Police Service Command Structure. Under Articles 243 and

245 of the Constitution, the National Police Service is established as a single entity. While the Kenya Police Service and the Administration Police Service are recognized in the Constitution, it was never intended that the two should operate as parallel services. There is therefore every need to urgently take steps to have them organized nationally to work together at all levels. This harmonization should include and be manifested in joint trainings, deployment including patrols, procurement, legal services, communication, sporting events and all other matters geared towards promoting one National Police Service. The Inspector General of the National Police Service must therefore immediately move to avoid duplication at the Service at all costs to cut down on waste and maximize efficiency in service delivery.

6.0.3. The Director of Criminal Investigations to immediately take steps to enhance the capacity

of the Directorate to collect criminal intelligence and to carry out effective investigations. Similar steps should be taken to ensure that from now henceforth, there is intelligence -led policing as opposed to the present reactive scenario. The Director of Criminal Investigations should provide IPOA with evidence of the mechanisms put in place to this end within 90 days.

6.0.4. Section 24 (f) of the National Police Service Act also requires the Kenya Police Service

to share in the responsibility of collecting criminal intelligence. The failures noted hereinabove are again, a manifestation of a system that is at the very best dysfunctional. The Deputy Inspector General of the Kenya Police Service is therefore hereby required to institute similar measures to enhance intelligence gathering and ensure intelligence-led policing in tandem with recommendations made at Paragraph 6.0.3 above. Evidence of the mechanisms put in place should be furnished to IPOA within 90 days.

6. 0.5. Human rights training should henceforth form part of all Police Training Curriculum in

Kenya. In this regard, all serving Police Officers should undergo a refresher training course on human rights which course should be continuous and wide enough to cover all other aspects of policing. In future, a key consideration for promotion within the National Police Service should be lack of any violation of human rights and evidence of having undertaken continuous training on human rights in addition to other trainings. IPOA will take steps to partner and collaborate with the National Police Service Commission to mainstream human rights training in the training curriculum of the National Police Service.

6. 0.6. The Police should ensure that detention facilities are maintained clean at all times. This

requirement of the Constitution is replicated under Rule 5 of the Fifth Schedule to the NPS Act which among other things makes it mandatory for lock-up facilities to have hygienic conditions conducive for human habitation and adequate light, toilet and washing facilities and outdoor areas.

6. 0.7. Children should be confined separately, from adults when detained as provided for in

Article 53(1) (f) (ii) of the Constitution and Rule 5(d) of the Fifth Schedule to the NPS Act. The operation should have children officers and children’s issues report desks to address issues of children in detention.

6. 0.8. To address issues concerning conducting searches upon women, enough female police

officers should be deployed as part of any police group conducting stop/search and arrest operations. This is because in the event that the officers find it necessary to conduct searches upon any woman during such operations, then the officers are required to comply with section 27 of the Criminal Procedure Code which provides that “whenever it is necessary to cause a woman to be

searched, the search shall be made by another woman with strict regard to decency.”

6. 0.9. Police Officers should at all times strive to accord detained persons their rights as

stipulated in Article 49, 50 and 51 of the Constitution as is required of them under Rule 2 of the Fifth Schedule to the NPS Act. These rights include the right to communicate with and receive visits from members of one’s family; the right to inform family members of the arrest and detention and place of detention; the right to have access to doctors and general medical assistance when required; and, the right to lodge complaints against ill-treatment and to seek compensation against

17

THE INDEPENDENT POLICING OVERSIGHT AUTHORITY

the Police. IPOA shall investigate and take appropriate action whenever there is a denial of these

rights and shall hold individual officers responsible.

6. 0.10. All future Policing Operations should aim at fostering broader relations with the

Community. In this regard, there is need for members of the Service to understand that Community engagement is the cornerstone of effective counter-terrorism policy. The need to build trust and support within communities must therefore be recognized and upheld.

6. 0.11. Given the apparent stigmatization of certain sectors of the Society as a result of this

Operation, the Inspector General is hereby required to take active steps to correct the impression created that certain communities are criminal and/or may harbour criminals.

6. 0.12. The Police should carry out a post-mortem of this Operation with a component of the

public element and to report its findings to IPOA within 90 days. The National Police Service shall henceforth be required to put in place measures to capture lessons learnt after every such operation and to conduct an after-action-review after every operation.

6. 0.13 The Officer Commanding Police Stations (OCS) should ensure that detainees’ records are captured in the OB and Cell register in the manner prescribed under Rule 8 of the Fifth Schedule to the NPS Act as opposed to the trend of recording details in loose papers. This way, the Officer-in- Charge will be able to account for all those persons who are released from the detention facility so as to discourage the junior officers under his/her command from engaging in corruption to secure the release of suspects.

6. 0. 14 The Internal Affairs Unit of the National Police Service should immediately institute investigations into allegations of bribery and corruption levelled against member of the Service during the Operation and to report its findings to IPOA as soon as practicable.

7. Conclusion

IPOA is of the firm view that whereas security must be maintained by all means in the wake of increased

crime including various acts of terrorism, the only way to deal with suspected perpetrators is through the rule of law, by ensuring all security operations meet the Constitutional threshold of respect for fundamental human rights. It is IPOA’s position that while this Operation was intended for a good cause, its implementation was problematic and wrought with many challenges. In the end, the Operation was not

conducted in compliance with the law, respect for the Rule of Law, democracy, human rights and fundamental freedoms as envisaged under Article 238(2) of the Constitution. In addition, the Police in their individual and collective capacities grossly failed to uphold the requirements of Article 244 of the Constitution which binds them among other things, to strive for professionalism and discipline and to promote and practice transparency and accountability.

IPOA continues to receive many reports of people being abused, assaulted and arbitrarily arrested. The

Authority is conducting investigations on complaints received with a view to taking criminal and/or disciplinary action against those culpable of violations.

The Authority has given well thought-out timelines for implementation of various recommendations and shall follow up the implementation of the same in line with its mandate.

This Report shall be shared with the National Security Council, the National Police Service and the National

Police Service Commission.

DATED at NAIROBI this 14TH day of July 2014

MACHARIA NJERU

CHAIRMAN