HUNIVERSITY Service: works to maintain a safe

HUNIVERSITY OF NAIROBI         SCHOOL OF LAWRESEARCH DRAFT PROPOSAL SUBMITTED IN PARTIAL FULFILMENT OF THE BACHELOR OF LAW (LL.B) COURSE. (GPR 421)A CRITICAL ASSESSMENT OF THE MISUSE OF POWER BY THE POLICE IN RELATION TO HUMAN RIGHTS AND RECENT TERRORIST ATTACKSBY: MWANGI IVYTEZ NYAMBURAREG NO: G34/35261/2014SUPERVISOR: PROF. JAPHETH ODHIAMBOWord Count: 2,500ContentsINTRODUCTION 3BACKGROUND 4STATEMENT OF THE PROBLEM 5JUSTIFICATION OF STUDY 6OBJECTIVES OF STUDY 6RESEARCH QUESTIONS 7HYPOTHESIS 7THEORETICAL FRAMEWORK 8RESEARCH METHODOLOGY 9RESEARCH LIMITATIONS 9LITERATURE REVIEW 9CONCLUSION 11CHAPTER BREAKDOWN 12BIBLIOGRAPHY 12INTRODUCTIONNational Police Service: works to maintain a safe and secure community, detecting, preventing and investigating crime and maintenance of public order.National Police Service Commission: manages recruitment, employment, professional standards and discipline of the National Police Service. Independent Policing Oversight Authority: investigates complaints made against the police, investigate all deaths in police custody, investigate matters that are not the subject of an individual complaint but that the IPOA think it should investigate, and make recommendations for action and report to Parliament .The rule of law basically states that no one is above the law. Whether this is just a statement applied when necessary or whether it is actually applied by law is the real question. The rule makes it clear that the law is put in place for everyone and not just for the civilians or subjects depending on the system of government within a specific area or within certain boundaries. The truth is this isn’t usually the case in most situations. There are those that appear to have the power or have had power granted upon them that leads them to think that the law does not apply to them or rather that they are “the law”.The research paper will focus specifically on the relationship between the police and the civilians in relation to recent terrorist attacks. The function of the police according to The National Police Service Act No. 11A of 2011 is to maintain law and order throughout the republic  but the police haven’t really lived up to this. The police have been a force that has brought fear to many and segregation among citizens. Part vii section 24 of the National Police Service Act No. 11A of 2011  clearly outlines the general functions, powers, obligations and rights of police officers in the service which are mainly; 1. Provision of assistance to the public when in need2. Maintenance of law and order3. Preservation of peace, protection of life and property4. Investigation of crimes5. Collection of criminal intelligence.6. Prevention and detection of crime7. Apprehension of offenders.8. Enforcement of all laws and regulations with which it is charged and performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time .Needless to say, the above stated functions are not always observed to the latter.BACKGROUNDThe new laws in the Constitution of Kenya 2010, established the National Police Service and National Police Service Commission. New laws had to be put in place to be in line with the laws in the Constitution. These changes were made necessary by the Ransley report that basically reviewed the police structures and systems after the 2007 post-election violence and recommended reforms in the police service. The report recommended the restructuring to include the police service commission and Independent Policing Oversight Authority .The Constitution of Kenya, 2010 part IV that discusses the objects and functions of the National Police service, states that the police must abide by the following principles : 1. Compliance with the law and utmost respect for democracy, human rights and fundamental freedoms and the law 2. Respect the diverse culture of the communities within Kenya 3. Recruitment shall reflect the diversity of the Kenyan people 4. Strive for the highest standards of professionalism and discipline 5. Prevent corruption and promote and practice transparency and accountability 6. Comply with constitutional standards of human rights and fundamental freedoms 7. Train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity 8. Foster and promote relationships with the broader societySTATEMENT OF THE PROBLEMThe function of the Police Act, was originally meant to set out the functions and powers of the police but clearly some of the powers that the police have do not promote good rather promote evil. Having the power to decide to who looks like a suspect according to section of the police act, led to the Muslim society being shunned after the Westgate bombing in 2013. There are countless cases where the police have arrested people with no reasonable cause which is justified by section 56 of The National Police Service Act No.11A of 2011 which states that the police have the power to stop and detain anyone they suspect of suspicious activity .  The system has not completely failed since they at times capture criminals but since the fate of any person lies on the person who arrests them and their financial position; who’s to say the number of citizens that have been roughed up in the name of resisting arrest since this is within their power. We’ve heard many times of the police shooting innocent citizens due to misunderstandings. No one is above the law but the police seem to be. They are the law. This is what I hope to achieve by writing the research paper, to figure out where police power becomes an infringement on human rights.JUSTIFICATION OF STUDYClearly, the intention of having the laws and provisions as set out in the constitution of Kenya 2010 and the National Police Service Act No. 11A of 2011 were noble because there cannot be a country without a set up showing how people can co-exist and setting up the authority and the subjects to authority. Under the National Police Service Act No. 11A of 2011, given the most recent violence in areas such as Mathare and Kibera in Nairobi and Kisumu area after the recently released August 8, 2017 election results, the police who are supposed to be a source of peace and security have been presented as a source of terror . While one can’t justify hooligan behavior, no one is above the law and every citizen’s rights end where their fellow citizen’s rights begin.  Can there be a realization where the police and citizens live in harmony rather than the police be the feared instead of being the ones that bring peace and harmony? This paper seeks to address the flaws in the system showing why the provisions are less likely to enhance justice and effect the law of Kenya.OBJECTIVES OF STUDYThe goals and objectives of the research paper are;i) Asses the powers and duties of the police stipulated in National Police Service Act No. 11A of 2011 in relations to the provisions set out in the Constitution of Kenya 2010, the Bill of rightsii) Point out the existing gaps that allow the police to interfere with human rights and for it to be within the lawiii) Critically examine the provisions in The National Police Service Act No. 11A of 2011 with regards to human rights and it has impacted and will impact co-existence and harmonious living in Kenyaiv) Provide suggestions/ recommendations on how to address the same challenges intended to be addressed with regards to protecting the labor rights.RESEARCH QUESTIONSThe research paper will also seek to answer the following questionsi) What are the effects of the provisions in the National Police Service Act No. 11A of 2011 on the bill of human rights?ii) Are such effects negative or positive?iii) Are there any existing gaps in the National Police Service Act No. 11A of 2011 touching on the interference of human rights that may hinder full implementation of the laws by the police?iv) In case of the gaps, how has that affected the faith of the people in the government that is meant to serve and protect them?v) Also, in case of the gaps, is there the need to re-amend the laws?HYPOTHESISThis paper proceeds under the presumption that The National Police Service Act No. 11A of 2011 negatively affects the citizens. It’ll go on to show the unrealistic nature of the act where instead of the assumed purpose, it brings the very opposite of its true intentions. These various provisions need re-amending since they do not adequately protect the people against injustice. Rather they make citizens more prone to injustice because in the case of a police officer, his word is what law is. They are the law and rather than the case where no one is above the law. The police are the law.THEORETICAL FRAMEWORKJustification of a right depends on how one argues for its existence. The philosophical assumptions and theories used to defend and or define the right.Legal realism, this theory basically states that rights are created and maintained by the state. Legal positivism proposes that there isn’t necessarily a connection between law and morality. Instead, it holds that law comes from various sources, usually the government. If the government enacts a law, then it should be followed. It is basically the opposite of natural law . This leaves the fate of the people on the state and basically not on what is naturally wrong or right. The state is left to decide what is right for the people. For example the use of firearms in section 61 of National Police Service Act No. 11A of 2011 . Natural law theory, this is based on the assumption that certain rights belong to man by nature. This sociological school of thought gives them new significance. Rights are regarded as immunities and freedoms which are highly conducive for perfect living in society. This theory is criticized on the grounds that rights can’t exist prior to state. Most human rights are based from this theory.According to Aquinas’s theology, natural law is integral to divine providence. “Eternal law” is the overarching law, established by God, which gives order to the chaos of creation .The first, advanced by Scottish philosopher David Hume (1711-1776), is that Natural Law Theory conflates that which is the case with that which ought to be the case. One cannot, as Hume pointed out, logically derive a moral imperative or value judgment simply by observing facts of nature.In response to arguments from science, the Church may defer to the maxim “absence of evidence is not evidence of absence.” In other words, it does not necessarily follow that if science cannot detect moral laws in the natural world, then they do not in fact exist .RESEARCH METHODOLOGYA qualitative research methodology will be adopted, making good use of both library, internet searches, questionnaires and interviews. The library research will seek to analyse and interpret various provisions in the Constitution, 2010 and the National Police Service Act 2011 since they are the main regulatory mechanisms for police power and human rights. Questionnaires and interviews will bring to light individual experiences with the police of unlawful arrest and detention. An in-depth analysis of various scholarly writings, both in primary and secondary sources, will be done with regards to this research area. Also, the research paper will be based on a case study as well as comparative methods of inquiry in order to prove or disprove the hypothesis.RESEARCH LIMITATIONSTaking into account the constraints that will be experienced in this area of research, this paper limits its research to regulation of the power of the police in Kenya and how it may require. The analysis will limit its focus on the Constitution, 2010, the National Police Service Act No. 11A of 2011 and International Conventions as regulatory framework in this area. It should be noted that it will be the researcher’s assumption that the existing literature will be reflecting the current situation in Kenya.LITERATURE REVIEWCan police officers do just what they want? No, absolutely not. A police officer who does not act according to the law and the specific rules about the police should be disciplined or brought before the courts. So, what powers do the police have? The two special powers the police have are to arrest people and to use force. It is the possibility of their exercising these powers that supports the police when they investigate or prevent crime or disorder. Stopping people, asking questions, searching them, collecting evidence, ordering people to come to the police station, dispersing crowds, or directing traffic are all backed up by the possibility of the use of those special powers. But they must use these powers only when the law allows, and must strictly follow the law’s procedures. What happens next when the police have a search warrant? If the police come into your house, they must identify themselves before entering, make a record of the incident, make a record of any things taken from the property and take the property recovered to a magistrate without delay. Can an ordinary person arrest or punish a person he or she suspects of having committed an offence? Anyone can arrest a person he or she suspects of having committed a serious offence, and hand that person over to the police as soon as possible. But it is a bit risky for an ordinary person, because the rules about what is a sufficiently serious offence are rather technical. Even if you do arrest someone, you cannot beat up or otherwise harm the suspect. The only situation when members of the public can use force is to defend themselves or others, but that too must be reasonable. It is a serious offence for the public to beat up or even kill a person – even if they are right that the person has committed a crime. Rather, they should hand the person over to the police for further investigation. NO, THERE’S NO TIME FOR THAT! THE SITUATION IS URGENT AND THE LAW ALLOWS US TO BREAK IN WITHOUT A WARRANT Can the police punish or abuse a suspect? Absolutely not. The police cannot punish a suspect, even if it is obvious that he or she is the one, who committed the crime. It is not the business of the police to punish people. Punishment comes only after the courts have fairly decided that a person is guilty. The law says the police must treat suspects humanely and cannot use physical force if the suspect does not resist. No officer must hit a suspect, unless it is necessary in self-defense, or to prevent an escape, or to prevent injury to another person .CONCLUSIONThis paper brings to light the fact that there are gaps in our laws and provisions provided by the law that need to be addressed. Appropriate suggestions need to be put across. There is a need for regulation which is undisputable but the current situation and impact on human rights should not be over looked in the name of the police doing their job It is clear as pointed out in this paper that there were gaps left during the amendment of police laws (which led to the coming into force of the National Police Service Act No.11A of 2011) and that appropriate suggestions ought to be put across  if true realization of a balanced and well-reasoned laws are to be realized. The need for some regulation is not disputed but its current range and influence is antithetical to peaceful co-existence, and seen to impede human rights and freedomsCHAPTER BREAKDOWN1. Chapter 1- This is the introduction (your proposal)2. Chapter 2- Theoretical framework( reflecting the theory you choose)3. Chapter 3- Case study4. Chapter 4- RecommendationsBIBLIOGRAPHY1. National Police Service act No.11A of 20112. Constitution of Kenya 20103.   St Thomas Aquinas, Natural law theory(1225-1274)4.   David Hume, Natural law theory(1711-1776)5. 101 things you wanted to know about the police but was too afraid to ask, Katiba Institute and Common Wealth Human Rights Institute, published in 20166. Odhiambo Oyoko Ag. Executive Coordinator,<> June 2012, YOUR GUIDE TO: THE NATIONAL POLICE SERVICE ACT, THE NATIONAL POLICE SERVICE COMMISSION ACT AND THE INDEPENDENT POLICING OVERSIGHT AUTHORITY ACT 2012, viewed 22September 20177. Steve Nguru<> Published: 22 August 2012 Last Updated: 14 April 2015 National Police Service under the new constitution, viewed September 2 20178. Audrey K. Wabwire May 25, 2017, Kenya elections 2017, viewed 5 September 20179.   Green, Leslie, “Legal Positivism”, The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.), URL = .first published January 3, 2003, viewed 5 September 2017