The Security Services Laws (Amendment) Bill, 2023

Background

Under the existing legal framework, the National Police Service and the Independent Policing Oversight Authority (IPOA) both possess overlapping mandates concerning the investigation of crimes committed by police officers. Furthermore, disciplined officers within the Kenya Prisons Service, Kenya Wildlife Service (KWS), and Kenya Forest Service (KFS) who exercise police-like powers (such as arrest, detention, and the use of firearms) have historically not been subject to independent civilian oversight. This Bill seeks to eliminate these jurisdictional overlaps and expand IPOA's oversight mechanisms to encompass these other key security services.

Key Amendments

National Police Service Act (No. 11 of 2011)

• Exclusion from Investigating Member Crimes (Section 72A): Explicitly prohibits police officers from investigating any crime suspected to have been committed by a member of a service.
• Mandate of the Internal Affairs Unit (Section 87): Revises subsection (2A) to restrict the Internal Affairs Unit from investigating criminal complaints against police officers, limiting its function instead to internal disciplinary recommendations.

Independent Policing Oversight Authority Act (No. 35 of 2011)

• Expanded Jurisdiction (Sections 2, 5, 6, 7): Redefines 'service' to include the National Police Service, Kenya Prisons Service, Kenya Wildlife Service, and Kenya Forest Service. It replaces the term 'police premises' with 'service premises' to allow IPOA to inspect prisons, borstal institutions, and other detention sites under any of the services.
• Board Disqualification (Section 10): Prevents serving members or those retired within the preceding five years from any of the newly included services from being appointed to the IPOA Board.
• Reporting (Section 30): Directs IPOA to submit its bi-annual performance reports to both the National Assembly and the Senate, and to copy the heads of all covered services.

Other Security Statutes

• Prisons Act (Cap. 90): Amends Section 6 and Section 12 to enforce cooperation with IPOA recommendations and require prison officers to exercise force and firearms in accordance with the Sixth Schedule of the National Police Service Act.
• Wildlife Conservation and Management Act (No. 47 of 2013): Amends Section 7 and Section 112, requiring KWS officers to cooperate with IPOA and comply with standard police rules on the use of force.
• Forest Conservation and Management Act (No. 34 of 2016): Amends Section 8 and Section 63, requiring KFS officers to cooperate with IPOA and use firearms in compliance with the Sixth Schedule of the National Police Service Act.

New Obligations

Notification of Custody Deaths and Serious Injuries

Heads of prisons, borstal institutions, KWS stations, and KFS stations must notify IPOA in writing immediately when any person in their custody dies or is seriously injured, or when an officer causes death or injury.

Evidence Securing Requirements

When a complaint is made or an arrest occurs regarding a service member, the officer in charge of the respective station or post must secure all relevant evidence (including pictorial evidence) and supply it to IPOA along with the names and contact details of potential witnesses.

Penalties

• Failure to Notify or Secure Evidence: Any service officer who fails to notify IPOA in writing of a death/injury in custody, or fails to take steps to secure relevant evidence, commits an offence.
• General Act Penalties (Section 31 of IPOA Act): General offences under the Act—such as disobeying summonses, failing to produce documents, or interfering with investigations—are subject to a fine not exceeding KSh 500,000, imprisonment for a term not exceeding three years, or both. Non-compliance with confidentiality rules under Section 23(14) is subject to a fine not exceeding KSh 300,000, imprisonment not exceeding three years, or both.