Independent Policing Oversight Authority (IPOA) — KE Legal Update

Reports of executive orders sanctioning unlawful police tactics to suppress protests in Githurai, Kenya, including home invasions and indiscriminate beatings, raise serious concerns about the rule of law and constitutional rights. This article examines the legal framework governing police conduct and the right to protest in Kenya, highlighting the constitutional limitations on executive authority and police use of force. It delves into the National Police Service Act, 2011, and relevant constitutional provisions, asserting that any executive directive purporting to authorize illegal actions is unconstitutional and exposes officers to individual and command responsibility. The piece underscores the critical role of oversight bodies like the Independent Policing Oversight Authority (IPOA) in upholding accountability and protecting fundamental freedoms.

This development necessitates a rigorous examination of the legal boundaries of executive authority and police powers in Kenya. The article posits that any executive order, whether explicit or implicit, that encourages or permits police to flout established laws and constitutional safeguards is inherently illegal and unenforceable. It will explore the constitutional and statutory provisions that govern the right to protest, the use of force by police, and the mechanisms for accountability, demonstrating that officers acting under such unlawful directives are not absolved of personal liability.

Executive orders in Kenya, while serving as instruments for the President to direct and coordinate government functions, must operate within the confines of the Constitution and existing statutes. They are intended to further the law, not to create new law or override constitutional provisions. Kenyan courts have previously affirmed this principle, invalidating executive orders that attempted to restructure independent constitutional bodies or assign functions contrary to established law.

The notion of an executive order to 'flout law' is a direct assault on the rule of law and the separation of powers. While the President has executive authority, this authority is derived from and limited by the Constitution. Directives that undermine constitutional rights or statutory duties are ultra vires and have no legal force. The judiciary has consistently asserted its role in reviewing executive actions to ensure their constitutionality, as seen in cases challenging executive overreach. Therefore, any police officer receiving such an order has a duty to refuse to obey it, as obeying an unlawful order is not a defence.

Legal professionals should actively monitor legislative developments, particularly any proposed changes to public order laws that could further restrict fundamental freedoms. The judiciary remains a crucial bulwark against executive overreach, and practitioners should be prepared to challenge unconstitutional directives and actions in court. Upholding the rule of law requires constant vigilance and a firm commitment to ensuring that all state organs, including the executive and the police, operate strictly within the bounds of the Constitution and statutory law.