Cleaning House in Kenya's Police Force

 Why security sector reform in Kenya has been much more successful than you might think. The latest in our series of Lab Reports on Kenya.

SIMON MAINA/AFP/Getty Images

BY Alexander Noyes

Kenya's generally well-regarded military has faced stinging criticism in the aftermath of the tragic Sept. 21 Westgate mall attack in Nairobi, with allegations of rivalries and "friendly fire" between army and police units and looting by soldiers. Kenya's police, which have a decidedly less than stellar reputation, became the focus of similar censure in October when David Kimaiyo, Inspector General of the police, was condemned for an "assault on the freedom of expression" after he summoned several journalists over their coverage of Westgate. After a public uproar, the requests were subsequently cancelled. Additionally, recent reports on elite police units have documented abuses. 

While these developments certainly raise a number of important questions and reveal persisting challenges, the prevailing narrative of police ineptitude arguably leaves out the most important part of the story. Kenya has actually made substantial -- if incomplete and fragile -- progress on police reform over the past five years.

There's a reason why security sector reform efforts in Kenya have focused on the police. Kenya's military has a well-established reputation for professionalism and has generally stayed out of politics (with the possible exception of a coup attempt in 1982). As a result, Kenya's soldiers have little involvement in political violence. By contrast, in the lead-up to Kenya's March 2013 elections, many observers derided the pace and extent of the then coalition government's efforts to reform the heavily politicized police force. (In the photo above, members Kenya's police force take cover during the September attack.)

The police reform agenda featured prominently in both Kenya's new constitution, which passed in 2010, and the 2008 powers-sharing agreement that put an end to the ethnically-driven 2007-2008 post-election violence, which was triggered by a close presidential election and allegations of fraud and ultimately left over 1,100 dead and 600,000 displaced. While criticism of the slow pace and implementation of police reforms since 2008 is warranted, during the March 2013 election the Kenyan police acted in an apolitical and generally professional manner, helping to contain tensions after the tight poll -- which, despite widespread concern of renewed bloodshed, was not followed by large-scale violence.

It's important to understand the broader historical context. Police systems in sub-Saharan Africa have long been used by elites to wield political authority, from the colonial period through the contemporary multi-party era. Independence leaders inherited and largely maintained centralized colonial policing structures, as the police proved to be useful tools for suppressing political competition and consolidating control. In the two decades since the "third wave" of democracy brought political liberalization to much of the continent in the early 1990s, the language of African policing shifted in many countries towards accountability and democratically oriented reform programs. In practice, however, the police generally remain political instruments and continue to play an often deleterious role in governance and political violence, from harassment of the opposition in Zimbabwe to widespread extrajudicial killings in Nigeria.

Until recently, the history of policing in Kenya was no exception. Successive Kenyan presidents -- from Jomo Kenyatta to Daniel arap Moi to Mwai Kibaki -- maintained firm executive control over Kenya's two police branches (the Kenyan Police Force and the Administration Police), and used the force to exercise political control. In 1964, Kenyatta jettisoned police autonomy a year after independence, retained the paramilitary structure of the colonial police, and employed the police to suppress political dissent. The use of the police for political purposes deepened in the 1980s under the increasingly autocratic Moi, as units were deployed to attack and torture political opponents. Moi ignored calls for police reform after the move to multi-party politics in 1991, using the police to arm ethnic militias and suppress opposition voter turnout in the violent and flawed 1992 and 1997 elections.

In an environment of violent crime and endemic corruption, Kibaki came to power in 2002 on a campaign of renewal, launching a police reform program in 2003 that aimed to professionalize the decaying, corrupt force and experiment with community policing. The rhetorical move toward democratic policing achieved little, however, as Kibaki continued the Kenyan tradition of using the police for regime security. That became vividly apparent as a result of police involvement in the 2007-2008 post-election violence, where the police were implicated in 36 percent of the officially recorded 1,113 fatalities and the wounding of over 500 more. 

The short-term triggers of the post-election violence were an exceedingly close election, reports of vote rigging, and Kibaki's decision to hastily declare victory. But the underlying roots of the violence can be traced to several longer-term trends in Kenya's history, including the state's loss over the monopoly of violence, the fragmentation of elites, and ethnically-based, high stakes "winner takes all" politics. To end the crisis, in February 2008, Kibaki and his challenger, Raila Odinga, established the coalition government that expired after the 2013 elections. As part of the power-sharing agreement, the coalition pledged to overhaul the troubled police force. To what extent was the so-called "unity" government able to deliver on its reform promise?

As my recent research highlights, two main factors helped achieve substantial, albeit sluggish and incomplete, police reforms in Kenya under coalition government: first, a low degree of political influence in the police; and second, strong police reform provisions in the text of the power-sharing agreement. A unique combination of factors led the police to become deeply politicized, as noted above, but police leaders never amassed enough of a power base to reciprocally influence the political sphere, a symbiotic relationship that is often seen in other cases such as Zimbabwe. 

These two factors allowed local, regional, and international actors to leverage the power-sharing text and push reforms forward, while, at the same time, recalcitrant police leaders were unable to sufficiently block reforms.

Thus, in spite of a halting pace and constant pushback from anti-reform elements, several significant legislative and constitutional police reforms took place during the tenure of the coalition government from 2008 to 2013. Kenya's new constitution, promulgated in August 2010, contained major changes to security and police governance, including provisions to diminish political manipulation and increase accountability of the police. The new constitution also merged the two police forces into one National Police Service, which was intended to help streamline the often overlapping and conflicting mandates of the two branches (the Administration Police was a colonial relic, created to help local chiefs with policing and administrative issues). In August 2011, three key police reform laws were passed: the National Police Service Bill, the National Police Service Commission Bill, and the Independent Policing Oversight Authority Bill. Passage of such reforms has set in motion the long process of reshaping police governance in Kenya.

Implementation of these institutional reforms has lagged due to a number of factors, but mostly due to a lack of political will from elites and recalcitrance from some within the police leadership. Here's what a member of the Kenyan government's Police Reforms Implementation Committee, Odour Ong'wen, told me in an interview in 2011: "The first major obstacle we are seeing as a committee is the resistance from the very top [of the police hierarchy].... A staggering majority are resisting." However, due to a lack of political influence, these efforts to resist change have largely been fruitless.

Kimaiyo, the first Inspector General of the reformulated National Police Service, who was a director in the Ministry of Internal Security when I interviewed him in 2011, acknowledged the difficulties in operationalizing institutional reforms: "The recommendations are there on paper," he told me. "Implementation is a problem." In spite of these obstacles and the real potential for a rollback under a new administration, it appears this institutional legal framework helped depoliticize the force ahead of the 2013 elections.

Notwithstanding fears about preparedness, during the ultimate test of the fledgling reforms -- the March 2013 national elections -- police conduct was, overall, commendable, which clearly stands in stark contrast to the 2007-2008 election. The police force deployed officers to areas that saw outbreaks of violence in 2007-2008, and was quick to send reinforcements to areas that did suffer from violence in the days before the March poll. In a move that could have implications for the quality of Kenya's democracy, Kimaiyo even instituted a ban on public demonstrations during the election period. In a recent post-mortem on the election, the International Crisis Group (ICG) concluded that police behavior during the March elections was "greatly improved" from the previous election, characterizing their performance as a "measured response."

 

Of course, there's still considerable justification for harsher verdicts. The ICG report itself highlighted several instances of questionable use of live ammunition and excessive use of force during the election period, episodes which are under investigation by the Independent Policing Oversight Authority. Additionally, a report released last month by the Open Society Justice Initiative and the Kenyan NGO Muslims for Human Rights is particularly critical of Kenya's Anti-Terrorism Police Unit, which they allege is responsible for a laundry list of abuses, including torture, arbitrary detentions, and disappearances.   

These worrying incidents -- combined with police conduct during Westgate and the subsequent crackdown on journalists, additional charges of major abuses of Somali and other refugees, persistently high levels of corruption, fundamental questions about effectiveness, chronic budget shortages, and continuing impunity for previous political violence -- highlight the many remaining challenges in turning  reforms into a reality.

Nonetheless, a new legal framework and improved police conduct during the March elections suggest real movement on reforms, particularly in depoliticizing the force. That said, recent efforts to amend two police reform bills to transfer some powers back to the police commissioner, which are currently being debated in parliament, suggest that the possibility of a reversal remains high under the new government of Uhuru Kenyatta.

Pressure from civil society and international actors played a large role in pushing the police reform agenda forward under the coalition government in Kenya. In order to consolidate on past gains and avoid backsliding, it is incumbent on both domestic and international actors to continue to monitor and push the Kenyatta administration to fully implement and translate police reforms from paper to practice.

Silver Lining: The Year 2013 in Human Rights

For human rights advocates, 2013 brought many grim setbacks. Yet there were still some important signs of progress.

JUNIOR D.KANNAH/AFP/GettyImages

BY Ken Roth

With the slaughter of civilians in Syria still horribly unrestrained, it is easy to be discouraged about human rights. There is, of course, every reason for outrage about Syria, and about the international community's narrow focus on peace talks, unlikely as they are to succeed anytime soon, without any comparable effort to stop the killing of civilians while the fighting continues. But there has been human rights progress in many areas in 2013. That is of obvious importance for the immediate beneficiaries, but it also should encourage efforts for progress on persistent abuses elsewhere. Here are a few of the human rights milestones of the past year:

Abusive Rwandan-backed rebel group in Congo crumbles. The eastern part of the Democratic Republic of Congo has probably had more conflict-related deaths than anywhere else since World War II. A plethora of armed groups have killed and raped civilians with impunity. Among them is a succession of rebel groups sponsored by Rwanda, both to protect it from any resurgence of the forces that committed the 1994 genocide and to exploit the region's vast mineral resources. The latest rebel incarnation, which emerged in May 2012, was the M23, led by, among others, Bosco Ntaganda, who was wanted by the International Criminal Court for war crimes and crimes against humanity.

Rwanda got away with instigating these atrocities due in part to the lingering guilt among the international community for failing to stop the genocide. The killing in 1994 was halted only by an invasion of the Rwandan Patriotic Front, led by Paul Kagame, today Rwanda's president. Another factor has been the international admiration for Rwanda's impressive economic advances in the post-genocide period, albeit under the leadership of an autocratic government that brooks no dissent.

Things began to change in June 2012, when Human Rights Watch and a group of United Nations experts uncovered compelling evidence that Rwanda was providing military support to the M23. For the first time, powerful Western governments -- including Rwanda's most important backers, the United States and Britain -- began to criticize Rwanda and even to suspend assistance. Rwanda simply denied supporting the M23, undermining the government's credibility and reconfirming the importance of pressuring it to stop.

At first the pressure succeeded in forcing the M23 to pull back from Goma, the area's largest city, and it later contributed to Ntaganda's surrender to the ICC. Still, for over a year, it was not enough to stop the M23 from preying on the people of the region. When the M23 opened an offensive in October 2013, however, Rwanda's role was all too clear. This time, United States Secretary of State John Kerry and British Foreign Secretary William Hague telephoned Kagame and told him to stop. He did. Deprived of the military support it needed to survive, and facing intensified pressure from a reinforced UN peacekeeping force (see photo above), the M23 crumbled within days. For the first time in years, eastern Congo is apparently free of the predations of a Rwandan-backed armed group.

China abolishes "re-education through labor." Many falsely assume that China is immune to pressure on human rights. In reality, that is more a convenient excuse for governments seeking China's commercial favor than a realistic assessment. China's judicial system is notoriously compromised, formally under the direction of the Communist Party, but at least it offers the pretense of a trial before a court. However, China has also long maintained a parallel system of administrative detention in which the police, without any judicial intervention, can sentence people to up to four years of forced labor, often under harsh conditions. The most active part of this system was known as "re-education through labor." Those caught up in it ranged from minor criminal offenders to dissidents, religious minorities, Falun Gong practitioners, and petitioners seeking redress. As recently as January, 160,000 people were serving sentences under re-education through labor.

Human rights activists and Chinese lawyers have long campaigned against this huge loophole to any promise of a fair criminal-justice system. For many years, China had been making noises about "reforming" the system. Critics expressed skepticism, fearing that this would involve only cosmetic changes, such as adding a judge to the police panel that makes detention decisions. But in new President Xi Jinping's first reform move, the government announced that it was abolishing re-education through labor (along with a slight loosening of the one-child policy). There are still other ways the police can detain people without trial -- drug users and sex workers will likely be the principal victims -- but this most common method now seems to be on the way out.

The "Responsibility to Protect" is still vibrant. In 2005, the world's governments made an historic pledge that they would step in if a national government failed to stop mass atrocities. The R2P doctrine, as it is known, has since been invoked successfully, most notably in Kenya and the Côte d'Ivoire. Some, however, have begun to argue that R2P is unraveling. They cite its controversial use in Libya (as NATO moved from protecting civilians to regime change), as well as the world's failure to stop the slaughter of civilians in Syria.

But in 2013, the doctrine showed a renewed vitality. When mass slaughter on sectarian grounds broke out in the Central African Republic, France and the African Union (AU) sent troops to reinforce overwhelmed AU peacekeepers, the United States contributed more than $100 million, and, as the year drew to an end, the United Nations was preparing for its own peacekeeping mission. Much more remains to be done to pull the country back from the brink, but the international community's responsibility to act is well understood.

In late December, political conflict and ethnic slaughter also threatened neighboring South Sudan, which broke away from Sudan and emerged as an independent nation only two years ago. Within days, the UN Security Council approved an additional 5,500 peacekeepers for South Sudan, a swift response suggesting that, at least in the right circumstances, the R2P doctrine is still a force to be reckoned with.

The UN Human Rights Council begins to live up to its promise. The council was established in 2006 to replace the UN Human Rights Commission, which had lost credibility as repressive governments flocked to it in an effort to use their votes to avoid censure. The council had tighter membership standards, but for its first few years was little better than its predecessor. In recent years, however, the council has come into its own. A key factor has been the Obama administration's decision to join it after the Bush administration shunned it. Other governments have also played an important role, including Mexico, Switzerland, Chile, Botswana, Brazil, Argentina, Mauritius, Benin, Maldives, Costa Rica, and a number of European Union states. Together they made a successful effort to bridge the political divides and overcome the apathy that often stood in the way of effective action. Even traditionally more reluctant countries, such as Nigeria and Thailand, were persuaded to play productive roles.

The positive results are most visible in the case of Sri Lanka. In 2009, when some 40,000 civilians were killed in the waning months of the conflict with the Tamil Tigers, the council's initial reaction was to congratulate the government on its victory. But for the past two years, the council has pressured Sri Lanka to honor its pledge to investigate war crimes by both sides and bring those responsible to account. Similarly, in March 2013, among other useful steps, the council established a commission of inquiry to collect evidence of North Korea's crimes against humanity -- the first step toward possible prosecution.

Two former African leaders face prosecution. During his reign as president of Chad from 1982 to 1990, Hissène Habré is alleged to have committed systematic torture and thousands of political executions. Deposed, he fled to Senegal, where he lived in comfortable exile as the country's former president, Abdoulaye Wade, obstructed repeated efforts to prosecute him -- in Senegal, in Belgium, and via mandate of the African Union.

Yet Habré's victims, and activists working with them, persevered. Their fortunes began to change when Macky Sall assumed Senegal's presidency in 2012 and the International Court of Justice ordered Senegal to prosecute Habré "without further delay." In June 2013, Senegal arrested Habré, and he remains in custody for a trial anticipated in late 2014 or early 2015. Habre's trial would mark the first time in modern history that the courts of one country tried the leader of another for alleged grave crimes under international law.

Similarly, an internationally established tribunal in September 2013 affirmed the conviction of Charles Taylor, the former president of Liberia, for planning and aiding and abetting atrocities by rebels in neighboring Sierra Leone, including by trading his arms for their diamonds. This sets a precedent that may come to haunt other leaders who assist atrocities in other countries by providing military support to abusive forces.

Exposing the National Security Agency's mass surveillance to public scrutiny. President Barack Obama is still trying to prosecute Edward Snowden, but he deserves a hero's welcome from everyone else for the tremendous service he did by exposing the NSA's massive surveillance ofelectronic communications and activities. If not for Snowden, we wouldn't know the extraordinary breadth of the NSA's data collection practices -- such as the fact that the agency collects metadata about potentially all phone calls in the United States because, under woefully outdated rules, none of us has any legitimate expectation of privacy about this information on the grounds that we shared it with the phone company.

Snowden also helped to highlight the NSA policy that foreigners outside the United States don't even have a recognized right to the privacy of the contents of their communications. He revealed that the NSA doesn't believe it affects our privacy when it collects our communications, only when it examines them. That amounts to saying it would be okay for the government to collect a video stream from your bedroom and store it on a government computer so long as it wasn't watched until the government came up with some reason to do so.

And without Snowden we wouldn't realize how weak the Foreign Intelligence Surveillance Court has been in reviewing all of these transgressions -- though we shouldn't have been surprised given that its judges, all hand-picked by the conservative Chief Justice John Roberts, hear only from the government and lack technical expertise. None of this has been fixed, although recommendations from a reform panel that Obama established address some of the issues. But after Snowden's disclosures, it is hard to imagine the world simply moving on as if nothing has happened.

A treaty to protect domestic workers takes effect. The world's most vulnerable workers are probably the millions who labor in people's homes, most of them women and girls. Working in isolation, often far from their own countries, they are ripe for economic exploitation, physical and sexual abuse, and trafficking. Yet they historically have been excluded from the rights afforded most other workers under national labor laws, due to a reluctance to legislate working conditions in the home, often coupled with the myth that these workers are treated like members of the family.

That should begin to change with the new Domestic Workers Convention, which took effect in September. It entitles domestic workers to most of the same rights that laborers outside the home have long enjoyed, including such basics as a weekly day off, limits on hours of work, and a minimum wage. In the two years since the convention was adopted, dozens of countries have strengthened labor-rights protection for domestic workers including comprehensive reforms in the Philippines and Argentina and new protections in Brazil's constitution. There is still a long way to go, but increasingly domestic workers' second-tier status under national labor laws is coming to an end.

Burma releases most of its political prisoners. The reformist government of Burma's President Thein Sein is at best a work in progress. The military still dominates the government and shows no willingness to change the constitution to, for example, permit Aung San Suu Kyi to run for president. War crimes committed in the ethnic conflicts in Burma's border regions remain unprosecuted. New violence has erupted against Muslims, particularly the Rohingya minority, led by Buddhist extremists and often tolerated by the security forces, with muted criticism from key national figures such as Aung San Suu Kyi.

But there is important good news. Independent organizations, while still subject to constraints, are flourishing more than at any time in the past 25 years. The media, while still embattled, are more outspoken. And hundreds of political prisoners -- the vast majority -- have been released. Some new people have been charged on political grounds -- a trend that needs to be stopped -- but there is no question that political detention has decreased dramatically in the last year.

Marriage equality is on a roll. It has been legalized in not only 18 U.S. states (and the District of Columbia), which the U.S. government must now recognize, but also in 16 countries, plus parts of Mexico. Governments joining the trend in 2013 were Brazil, France, Uruguay, New Zealand, and Britain (though it has yet to take effect in the latter).

A step forward for the right to health. Because of the narrow focus of the U.S. Constitution, most Americans do not realize that international human rights law includes not only civil and political rights but also economic, social, and cultural rights. An example is the right to the highest attainable standard of health. Obamacare might have been much less controversial if more Americans treated access to medical care as a basic human right. But one area where progress was made globally on the right to health involved the danger of mercury poisoning. Much of the world's artisanal gold mining uses mercury to separate gold from ore. Mercury is toxic, and particularly harmful to children. Exposure can cause life-long physical and mental disability. A treaty adopted in October requires governments to eliminate the most dangerous uses of mercury in mining and promote alternative forms of gold processing that do not require mercury.

An official assessment of Bush's torture policies seems nearer. On his second day in office, Obama pledged to end the Bush administration's "enhanced interrogation techniques" -- the U.S. government's preferred euphemism for torture. But shamefully, Obama has refused to prosecute those who planned and ordered the torture, encouraging future presidents to treat it as a policy option rather than the crime that it is. What's more, Obama has even fought efforts to investigate the torture, and cited the need to preserve state secrets to block victims' civil lawsuits.

That has not stopped the Senate Intelligence Committee from conducting an extensive investigation and producing a 6,000-page report. While still classified, it reportedly rejects the CIA's claim that the "enhanced interrogation techniques" yielded key information for the capture of Osama bin Laden or any other information of value, and finds that the CIA lied to Congress, the White House, and the Justice Department about the effectiveness of the program. The CIA (meaning the Obama administration) has been fighting tooth and nail to block publication, even as its own unpublished internal report is said to have reached similar conclusions. But as the year came to a close, this obstructionism seems increasingly to be failing. Senator Dianne Feinstein, the chair of the committee, has said she intends to seek declassification of a 300-page executive summary -- the only accounting for Bush-era torture that we're likely to see anytime soon.