Executive orders police to flout law in new tactics to handle protestors

The recent reports concerning executive directives allegedly encouraging police to bypass established legal protocols during protests in Githurai represent a profound challenge to the rule of law and the constitutional protections afforded to Kenyan citizens. These allegations suggest a departure from the National Police Service Act and the Public Order Act, which strictly regulate the use of force and the management of public assemblies. When law enforcement agencies operate outside the bounds of the Bill of Rights—specifically the right to life, security of the person, and freedom from torture or cruel, inhuman, or degrading treatment—it undermines the foundational principles of the 2010 Constitution. The reported actions, including the targeting of bystanders and the invasion of private residences, raise serious concerns regarding the accountability mechanisms within the security sector.

From a legal perspective, this situation highlights the precarious nature of executive oversight and the potential for the abuse of power when police operations are not subjected to rigorous judicial or independent scrutiny. The Independent Policing Oversight Authority (IPOA) is tasked with investigating such instances of police misconduct, yet the efficacy of these investigations is often questioned when executive pressure is perceived to influence operational tactics. For legal professionals, this development serves as a stark reminder of the necessity of constitutional litigation to challenge state overreach. The courts have consistently held that the police service must remain professional, impartial, and accountable, and any directive that mandates the flouting of the law is inherently unconstitutional and subject to being struck down through judicial review.

Practitioners should be prepared to engage in strategic litigation to protect the rights of victims of police brutality. This involves documenting evidence, filing for constitutional petitions, and seeking interim orders to restrain unlawful police conduct. Businesses and individuals operating in volatile areas should also be aware of their rights to seek damages for property destruction or personal injury caused by state agents. Moving forward, the legal community must remain vigilant in monitoring the implementation of police reforms and ensuring that the chain of command is held accountable for any directives that violate the constitutional mandate of the National Police Service to protect and serve all citizens without prejudice.