Implementing National Security: Challenges And Resistance By Tom Kagwe

Kenyans realise that ‘national security’ has been used as an excuse for stifling opposition, detaining suspects without trial, even torture and inhuman and degrading treatment to individuals and groups that the government dislikes.
Despite the constitution, the state continues to commit atrocities reminiscent of the Wagalla massacre and the shifta war. And in the name of national security, billions have been stolen from the Treasury for the security forces, money that should have been used to provide the poor with the basic necessities of life, consistent with the constitution.
The constitution
The constitution of Kenya, in search of a new order, defined 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.” (Article 238(1)).
The definition both buttresses the traditional state-centred model of national security and introduces a new model of security: human-centered, and including human rights and democratic freedoms.
These two models co-exist and each is important. The state cannot be defined without inclusion of its people who should be protected against a possibly parasitic state, which can trample on its own people’s fundamental freedoms.
The constitution spells out four relevant principles (Article 238(2)). These are that national security is subject to the constitution and Parliament; national security must respect the rule of law and protect human rights; the three national security organs must respect the cultures of Kenyan communities; and security organs must reflect the diversity of the Kenyan people in equitable proportions.
The Kenya Defence Forces, the National Police Service and the National Intelligence Service are subject to civilian authority. And the only way to create any other security organ is by Act of Parliament.
Status of implementation
Unfortunately, we can see examples of failures in terms of all those principles, including examples of outright attempts to amend the constitution through ordinary legislation.

a. Subject to the constitution and Parliament
The executive arm of government has deployed the military to quell internal insecurity without Parliamentary approval, although Article 241(3) (c), provides that the KDF “may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly.” At no point has the government sought Parliamentary approval for the ongoing deployment of the KDF in operations all over the country.
Second, the government, has, through executive orders (not a law), placed the Kenya Forest Service (KFS rangers), Kenya Wildlife Service, and the National Youth Service under the Inspector General of the NPS.
There are ongoing attempts to transform the NYS into a paramilitary body in charge of insecurity, working with the KDF in cases of unrest in parts of the country. Such attempts may be declared unconstitutional because of lack of participation.
We must not forget that the constitution provides: “a person shall not establish a military, paramilitary, or similar organisation that purports to promote and guarantee national security…” other than by an Act of Parliament – which must respect the principles of governance and values enshrined in the constitution.
On the other hand, it is good to see Parliamentarians saying they will not accept amendments to the KDF Act that would weaken Parliamentary control over the military.

b. Respecting the law and human rights
The national security organs must respect the rule of law and democratic freedoms. However, some associations, including civil society organisations, have been deregistered by the government under the excuse of national security.
National security has been again invoked when cancelling people’s rights to picket and present public petitions to authorities – rights guaranteed in Article 37 of the constitution. People’s political rights, such as the right to campaign for a cause, under Article 38, have been denied by police, military and executive through cracking down on dissent, opposing political rallies, and responding to what is said in those meetings or in those associations with crude legal processes meant to intimidate.
The right to integrity and security of the person is threatened all over Kenya by rising crime rates, insecurity generally, acts of terror in security organs “counter-terrorism” efforts, where Muslims, young people and people of Somali organ have been affected the most. The net results have been suspicions of enforced disappearances, arbitrary arrests, and possible extra-judicial executions.
The recent report by the Kenya National Commission on Human Rights implicates the KDF and NPS. It says violations include “twenty five extrajudicial killings and eighty one enforced disappearances.
As detailed in the foregoing, these violations are widespread, systematic and well-coordinated and include but are not limited to arbitrary arrests, extortion, illegal detention, torture, killings and disappearances.” This report is currently generating some heat and fire, but its contents cannot be wholly denied.

c. Respecting Kenyan cultures
The Independent Policing Oversight Authority has documented how the NPS, and to some extent the military, have failed to respect communities and cultures. The two reports on Usalama Sanitize Eastleigh and the occurrences during and after the Mpeketoni attacks clearly depict how these organs are at odds with communities.
Over time, the NPS and the KDF have treated communities with contempt, particularly the poor and, or, nomadic in lifestyle. Their acts, particularly their counter-terrorism efforts, have made it impossible to achieve national security.
Although the NPS must “foster and promote relationships with the broader society” (Article 244), the police, and sometimes the military, have jeopardised these relations through torture, inhuman and degrading treatment, flattening homes, stealing livestock, or even raping women and girls.
Although the Inspector-General of Police remains responsible for operations in which the KDF are involved within the country, the KDF has formed a parallel operation, not accountable to either IPOA or the people of Kenya.

d. Reflecting Kenya’s diversity
Personnel are supposed to reflect Kenya’s diversity in equitable proportions. The security organs were fond of picking their recruits from particular ethnic communities which were thought to be loyal or whose support could be bought. Communities considered renegades never got the chance to join the army or the police.
Reports by the National Cohesion and Integration Commission, or even the Public Service Commission, have expressed concern about how recruitment of public servants (including police and military), have been skewed towards those communities represented in government.
One of the factors in the court decision nullifying the 2014 police recruitment was the failure to respect this equitable proportion principle. The ongoing military recruitment, too, should respect the principle as courts have shown that otherwise they are prepared to quash such recruitment.
Other issues
There is a another group of issues, including the role of County Commissioners in the national security architecture. The Garissa terror attack, among others, was caused by this confused framework. Yet they are not a security organ – by the constitution, or other law. But it is clear that, from the perspective of government, security is precisely what they are about.
The new conception of security – both state-centred and human-centred – seems not to be appreciated by the national security organs. Failure to abide by the constitution must result in sanctions on each responsible individual.
There is no space to describe the abuse of national security to siphon off state resources.
In summary, implementing national security reform has been met with stiff resistance from some security organs actors, and has been captured by a state fond of abusing human rights. Nonetheless, the forces of change must not waver, for the price of freedom is eternal vigilance.

Tom Kagwe, JP is a Board Member of the Independent Policing Oversight Authority

Disclaimer: This commentary expresses personal views, and not those of the IPOA board or Authority.
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