On April 2nd 2015, the bloody attack on Garissa University College captured and dominated news headlines worldwide. The attack was claimed by Al-Shabaab, a Somali-based militant group labeled by many as a “terrorist organization” due to its linkages with Al-Qaeda, that has been responsible for many attacks across Kenya over the past few years. The attack in Garissa involved gunmen who stormed the college and held more than 700 students hostage during a daylong siege that ended when the four attackers were killed, resulting at least 147 innocent civilians’ dead and 79 or more injured. The Garissa attack is the deadliest attack in Kenya since the 1998 bombings of the USA embassies in Kenya and Tanzania. This attack has become a national tragedy and has sparked off an intense debate on security and policing in Kenya, particularly the role and efficiency of the state armed forces.
That same day, President Uhuru Kenyatta made the following public statement on television: “I also further direct the Inspector General of Police to take urgent steps and ensure that the 10,000 recruits whose enrollment is pending promptly report for training at the Kenya Police College in Kiganjo. I take full responsibility for this directive; we as a country have suffered unnecessarily due to shortage of security personnel – Kenya badly needs additional officers and I will not keep the nation waiting”. The Inspector-General of Police, Joseph Boinnet, supported this announcement by instructing those 10,000 recruits to report for training on April 12th from 7 am onwards.
This act, in which the President urged police recruits to report for police training, may initially seem like part of an ongoing process to boost manpower amidst a national crisis. Such a call would seem logical to many: in a country such as Kenya, where the state police is often criticized for being under-resourced and undermanned, additional recruitment is essential.
Yet this statement, and thus Presidential order, is much more complicated, has far-reaching consequences, and touches upon an ongoing case since the summer of 2014 that provides tremendous insight into issues of state-making in Kenya.
In this essay, we will very briefly summarize this case and analyze what we think this means for state-making in Kenya.
Largely as a result of the post-election violence that tainted Kenyan society in 2007-2008, the then new Constitution was established in Kenya in 2010. Although widely encompassing, this Constitution included several changes. To begin with, national security was redefined to include protection of human rights and fundamental freedoms of people, which was unheard of before. Second, national security organs, including the police, were to be accountable to civilian authorities. Thirdly, new principles of policing that were based on human right standards were introduced, including the creation of new accountability mechanisms through Article 244. This Article is the genesis of the Independent Policing Oversight Authority (IPOA) of Kenya.
IPOA is a civilian oversight body that was established by Act Number 35 of November 2011 to ‘oversee’ the work of the National Police Service. Broadly speaking, IPOA exists to: a) hold the police accountable to the public in the performance of their functions; b) give effect to the provisions of Article 244 of the Constitution which requires the Police to strive for professionalism and discipline, and to promote and practice transparency and accountability; and c), ensure independent oversight of the handling of complaints by the National Police Service.
In July 2014, the police underwent recruitment of 10,000 police officers – claimed to be the highest amount in Kenya’s history and a serious step towards changing the police to population to the UN- recommended 1:400.
Yet IPOA had recommended that this national recruitment exercise of future police officers be annulled and repeated countrywide on the basis that their recruitment had massive irregularities, including outright bribery, nepotism, favoritism and further, was unlawful to the extent of contravening the Constitution of Kenya, and other national laws.
IPOA had collected numerous complaints from the public, analyzed the same and provided an annex of these complaints that formed the basis or evidence for the petition.
In its constitutive Act, Section 29 of the IPOA Act stipulates that recommendations made on behalf of IPOA should be implemented, and if not, IPOA can seek the Court’s intervention to implement the recommendation. The National Police Service Commission (NPSC) ignored this recommendation regarding police recruitment, and did not rescind the recruitment, and so did the Executive arm of government. In the fall of 2014, the High Court of Kenya sided with IPOA that the recruitment exercise was unconstitutional and unlawful, and hence be annulled and recruitment be done afresh in the entire country. However, after the judgment of the Court, the NPSC appealed the case and a verdict was scheduled for Friday May 8th.
Therefore, statement made by the Kenyan President in early April thus bypassed the court ruling, and was unconstitutional, in the eyes of many.IPOA claimed to cite the Inspector-General of Police for contempt of court, and the Attorney General, Githu Muigai, also publicly denounced the statement, arguing that the law cannot be broken, even if it has the aim of addressing security issues. The counter argument of the President was of course that new recruits were needed because of high levels of insecurity, as the Garissa attack clearly demonstrated.
These two opposing claims were also echoed among the Kenyan public, who fiercely debated this issue. Some expressed support for the President’s Order, including the would-be recruits and their families, similarly claiming that extraordinary measures needed to be taken to deal with the growing threat of terrorism, while others argued that the law had to be upheld, no matter what.
Yet there were also many Kenyan citizens that were unaware of what exactly was going on and did not, until the Presidential order, know about the irregularities of police recruitment. This was either because the case was still in court and hence not discussed in public, or simply because it is an ingrained culture of the public that to get a job in the public sector, one most likely must part with a bribe.
Due to numerous sources of pressure, President Uhuru eventually bowed down, yet instead, called upon those interested in joining the police service to turn up for new recruitment on Monday April 20th. This angered many of the old recruits from 2014, who had already prepared themselves for training, and several newspaper reports contain personal stories of those who had travelled long distances and invested financially in order to reach their new training sessions. So the stakes were on high on Monday April 20th, when recruiting took place all over the country. The recruitment was important because it was undertaken against the backdrop of not only a pending Court of Appeal decision, but also because there were many expectationsthat the July 2014 recruitment was controversial, illegal and unconstitutional. Tensions were thus rather high and many were in anticipation of the decision that would be made on May 8th.
On Friday May 8th, the Court of Appeal made a judgment affirming that the High Court decision was to be upheld: the police recruitment of July 2014 was riddled with numerous irregularities, such as corruption, and thus violated the Constitution, and was nullified. This decision affected all the 10,000 recruits.
Furthermore, the judges involved in this decision also stated that the irregularities of the recruitment commenced when sub-county commissioners were given the authority to conduct the recruitment, a delegation that was void to begin with.
Sub-county commissioners are civil servants who represent the National Government at the level of the counties. They are former district commissioners appointed directly by the presidency. The court of appeal also noted that the NPSC did not delegate in writing to the Inspector General of National Police Service. The Court was short of stating that the NPSC abdicated its responsibility.
State-making in Kenya
As an anthropologist researching security and policing in Kenya and a board member of IPOA, we, as authors, have both been following this case study with immense interest, and we are pleased with the Court’s decision. For us it is a slight victory and a next step in the long process of constitutional and police reform in Kenya.
Yet, although IPOA may seem to be the “winner” of this case, this entire process, particularly the actions of the President and Inspector General of the Police, highlight that constitutional and police reform is a cumbersome process that has a long way to go in Kenya.
This case study is an example of how a state body can provide oversight of another agency (the police), without strictly overseeing another independent constitutional organ, but nonetheless quash the activities of that state body. Yet the actions undertaken by the President and other figures of authority, also point towards an understanding that these decisions, and thus the actions of particular state bodies, can be disregarded and overruled. All of this highlights that state making is an ongoing process in Kenya and this raises several questions for anthropologists that are interested in processes of and questions surrounding statehood.
The main questions forces us to go to the start of this entire case study, namely the problem of police recruitment in Kenya that is apparently tainted by numerous irregularities, such as corruption. Corruption is notably rife in Kenya, and on the global Corruption Perception Index (CPI) of 2014, Kenya is ranked 25, on a scale of zero to 100, where zero is “highly corrupt” and 100 is “very clean”. Not only is this a two point drop from the previous year, it also places Kenya at number 145 out of 174 countries. These figures, pointing towards high levels of corruption in Kenya, are supported by Afrobarometer’s recent report of April 2015, wherein 75 per cent of respondents stated that “most” or “all” of the police are corrupt in Kenya.
This case study highlights that corruption is deeply ingrained within the police force and starts at the very beginning, namely at the point of recruitment and this surely demands a great deal of reform. It is impossible to have integrity at work, once employed through processes that lack integrity. Therefore, although the recommendation made by IPOA has been vindicated, up to the Court of Appeal, this does not mean that such irregularities will simply vanish. In fact, it probably points towards a need for oversight by IPOA in all future recruitments.
A second important question concerns a need to further focus on the interactions and connections between different state institutions to further uncover issues of hierarchy, authority, and the rule of law. Anthropologists are increasingly concerned with studying “the state” and the state police has certainly been a key study of interest. The remarkable findings of anthropologists such as Didier Fassin (2013), Julia Hornberger (2011), Sinan Çankaya (2011), Mirco Göpfert (2012), Jan Beek (2012), Olly Owen (2013), and Beatrice Jauregui (2010) – to name a few – have highlighted the tremendous insight anthropologists can provide into policing cultures and the daily practices of one of the most publicly-contested state bodies.
Although varied in their focus of region and approach, these studies have outlined the numerous ways in which police officers struggle to meet various needs in their daily practices.
So how come policing civilian oversight bodies have rarely caught the analytical attention of anthropologists, and have primarily been the focus of research for criminologists and political scientists? Case studies, such as this one of police recruitment in Kenya, force us to analyze and question the dynamics of intra-state interactions.
How do different state bodies interrelate with each other and how do oversight bodies work in shaping the actions of others? How are issues of hierarchy and authority exerted between different state bodies and their representatives? And how do issues of national security, such as terrorist attacks, influence these mechanisms and interactions?
We do not have answers to these questions, but have been prompted by this case of police recruitment to ask them. We also believe that ethnographic research on such institutions can provide immense insight into intra-state authority and legitimacy, further unraveling the various layers of the Kenyan state, and statehood in general.
Beek, Jan. 2012. “‘There Should Be No Open Doors in the Police’: Criminal Investigations in Northern Ghana as Boundary Work.” Journal of Modern African Studies 50 (4): 551–72.
Çankaya, Sinan. 2011. Buiten veiliger dan binnen: in- en uitsluiting van etnische minderheden binnen de politieorganisatie. Delft: Academische Uitgeverij Eburon.
Fassin, Didier. 2013. Enforcing Order: An Ethnography of Urban Policing. Cambridge: Polity Press.
Göpfert, Mirco. 2012. “Security in Niamey: An Anthropological Perspective on Policing and an Act of Terrorism in Niger.” Journal of Modern African Studies 50 (1): 53–74.
Hornberger, Julia. 2011. Policing and Human Rights: The Meaning of Violence and Justice in the Everyday Policing of Johannesburg. New York: Routledge.
Jauregui, Beatrice Anne. 2010. Shadows of the state, subalterns of the state: Police and “law and order” in postcolonial India. Unpublished PhD dissertation, University of Chicago.
Owen Olly. 2013. “The Police and the public: Risk as preoccupation.” Sociologus 63(1): 59–80.