What is in Murkomen’s first policy to the IG police on the use of firearms and force

Interior and National Administration Cabinet Secretary Kipchumba Murkomen Friday issued his inaugural policy directive on police use of force and firearms.

There was nothing new in the policy from what the law enforcement officials are trained in the use of firearms and force.

It comes in the wake of increased pressure from various parties on the police on how they handle protests amid claims of extrajudicial killings.

Murkomen announced the issuance of the policy that aims to give guidance on use of force and firearms by the police across the Republic.

“I have issued a policy directive on the use of force and firearms pursuant to Article 245(4) of the Constitution, the National Police Service (NPS) Act and the court decisions to the Inspector General of Police,” said the CS.

“I have dispatched the policy to the IG detailing the recommendations to use force factoring in the prevailing legal framework and court decisions.”

He added the Policy Directive on the Use of Force and Firearms was issued  pursuant to Article 245(4) & (5) of the Constitution of Kenya and Section 61 & Schedule 6A-6B of the National Police Service Act.

The policy, for instance says the National Police Service shall promote progressive use of technology including fixed closed circuit television systems (CCTVs), body-worn cameras and other digital evidence capture tools with a view to enhancing operational transparency and safeguarding the evidential integrity of all use of force inquiries.

He explained the directives are further to the provisions of Section 61, Schedule 6A and 6B of the National Police Service Act, save for the impugned provisions under paragraphs 1(c), (d) and (e) of part B.

“The objective of the policy is to ensure that there is a consistent and transparent approach adopted on the conditions as to the use of force and firearms in compliance with the Constitution. To this end, kindly ensure that the National Police Service is informed on the inception of the policy,” he said in a letter to the IGP Douglas Kanja.

Murkomen said the aim of this policy is to ensure that there is an efficient and consistent approach adopted across National Police Service regarding the use of force.

“It also recognises the General powers of police officers under Section 49 of the National Police Service Act as to the use of discretion in policing considering any relevant policing codes, guidance, policies and procedures.”

“The Inspector General is directed to ensure that all officers under the National Police Service are aware of relevant legislation and are informed about the extent of their legal powers and the context within which those powers can be properly exercised,” it said.

The policy directive shall apply supplementary to the Constitutional, legislative and attendant the rules and regulations.

“The Inspector General of Police is directed to inform the National Police Service on the inception of the foregoing policy directive and the imperative to comply thereof.”

In the policy, the word use of force refers to the application of physical power, including restraints and weapons, to compel compliance or overcome resistance.

It says a police officer may use force and firearms only in accordance with the rules on the use of force and firearms under the law, departmental standing orders and the respective policy directive.

“A police officer may use force only to the extent required for the performance of their duty. Force must never be used as a form of extrajudicial punishment.”

“No additional force is lawful when a suspect is safely and lawfully d e t a i n e d,” the document says.

The use of force shall be no more than the minimum reasonably necessary in the circumstances and in Proportionality, Necessity and Precaution, law enforcement officials shall not use force or firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury.

“The officers, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and/or firearms.”

“Any use of force must be lawful, proportionate and reasonable in the circumstances to achieve a legitimate law enforcement objective,” the document says.

It adds whatever the lawful use of force is unavoidable, the officers shall exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved, minimize damage and injury, and respect and preserve human life and ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment.

They should ensure that the independent policing oversight authority is notified at the earliest possible.

In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

In discharge of its obligations under Article 37 of the Constitution, the National Police Service shall provide adequate security to persons lawfully and peacefully assembled and shall take all reasonable measures to shield them from violence, intimidation or other interference by third parties.

The document says a police officer is not entitled to discharge a firearm against a person unless the officer has reasonable grounds for believing that the person is committing, or about to commit, an action likely to endanger the life or cause serious injury to the officer or any other person, and there is no other way to prevent the danger.

“Police officers have the right to defend themselves from unlawful physical violence.”

In determining the proportionality of force to apply, the officers shall consider the person’s behaviour and their level of resistance, if the person refuses to comply or exhibits body language indicating non-compliance, any assault where there exists the possibility of great bodily harm or death of the officers.

The document directs police officers to act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy.

“The Offices shall deploy strategies and techniques to manage potentially volatile situations by reducing the likelihood of force and promoting peaceful resolutions.”

When applying force, officers shall exercise heightened caution when interacting with children, persons with disabilities, older persons and gender-based vulnerable groups ensuring that all interventions remain sensitive, proportionate and non-discriminatory, the document says.

In training and counselling all the officers deployed to enforce law and order shall be selected by proper screening with appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training.

Their continued fitness to perform these functions should be subject to periodic review.

“All officers shall be provided with training and periodically tested in accordance with appropriate proficiency standards in the use of force.”

The document says the National Police Serve shall conduct regular de-escalation training programs for equipping officers with the necessary skills and knowledge to effectively implement de-escalation strategies in diverse situations.

NPS shall ensure officers are equipped with appropriate crowd control facilities and self-protective gear commensurate with prevailing operational risks.

The National Police Service Commission shall give special attention to issues of police ethics, mental health and human rights, alternatives to the use of force and firearms, peaceful settlement of conflicts, the understanding of crowd behaviour, and the methods of persuasion, negotiation and mediation with a view to limiting the use of force and firearms, the document says.

According to the policy, shall review their training programme, manuals and operational procedures in the light of particular incidents and make counselling available to law enforcement officials who are involved in situations where force and firearms are used.

Police officers are to abide by police regulations, force policies and lawful orders and behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.

For accountability and transparency, NPS shall foster a culture of responsibility, encouraging officers to account for their actions while recognising the challenges inherent in operational policing.

“Any officer accused in connection with a use of force incident shall be afforded legal representation arranged in liaison with the Office of the Attorney-General to ensure due process safeguards,” it adds.

NPS shall exercise responsibility in ensuring that the accountability including in the objective review and analysis of all incidents of reportable force, complaint procedures and regular consultation with Independent Police Oversight Authority.

On the other part, the Directorate of Criminal Investigations shall embed qualified personnel within investigative teams to facilitate prompt, impartial inquiries into all reportable force incidents.

Police officers affected by the use of force and firearms shall have access to an independent process of investigation in accordance with Sec. 24, Part Ill of the Independent Policing Oversight Authority Act.

“There shall be scrutiny and review processes that offer a transparent and independent review to ensure that any use of force is applied lawfully and fairly and public reassurance that policy adherence is met.”

“Police officers shall give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally,” the document added.

It directs the NPS to establish measurable Key Performance Indicators and maintain a centralised data management system capturing, at a minimum that all reportable force incidents, public complaints and their disposition and completion rates for mandatory training.