Masengeli: The Role Of Judicial Oversight Over The Police In Kenya
The recent friction between the Acting Inspector General of Police Gilbert Masengeli and Justice Lawrence Mugambi of the High Court of Kenya came about because the Acting IG failed to comply with Court Orders regarding the investigation into the disappearance of three individuals in Kitengela.
The Law Society of Kenya had filed a case following the disappearance of Bob Micheni, Jamil Longton, and Aslam Longton on the 19th of August. It’s alleged that these individuals were abducted by armed Police Officers due to their participation in recent anti-government protests. Justice Lawrence Mugambi ordered the Acting IG to disclose their whereabouts and to appear in Court for questioning. Mr Masengeli repeatedly failed to comply with the Court Summons.
Consequently, Justice Mugambi sentenced Masengeli to six months in jail for contempt of court. The Judge ordered him to surrender to the Commissioner General of Prisons unless he complied with the Court orders within seven days.
The relationship between the Judiciary and the Police is a crucial component of the criminal justice system. To begin with, they operate within distinct branches of government. The Judiciary is part of the Judicial Branch, while the Police fall under the Executive Branch. The Judiciary acts as a check on Police power, ensuring that law enforcement operates within the confines of the law.
Article 160 of the Constitution asserts that the Judiciary is independent, and is only subject to the Constitution and the Law. This independence is crucial for upholding Justice without interference from the other branches of government. The National Police Service Act outlines the functions of the police, which include maintaining law and order, preventing crime, and enforcing laws. The Police are expected to operate within the confines of the law and to respect Judicial authority.
The oversight role the Judiciary has over the Police is multifaceted and stems from several constitutional provisions and statutory laws.
- Constitutional Basis: Article 159 gives the Courts judicial authority that is derived from the people. Article 165 empowers the High Court with jurisdiction over Constitutional matters and fundamental rights.
- Judicial Review: The Judiciary can review police actions and decisions to ensure they comply with the law and the Constitution. This power is derived from Article 23 and 165 of the Constitution.
- Protection of Rights: The Courts enforce the Bill of Rights (Chapter 4 of the Constitution), which include protections against arbitrary arrest, detention, and a right to a fair trial.
- Issuance of Warrants: Judges and Magistrates issue warrants for searches, arrests and other police operations, providing oversight on Police investigative powers.
- Bail and Bond Hearings: The Courts determine whether arrested individuals should be released on bail, effectively overseeing police detention practices.
- Admissibility of Evidence: Courts rule on the admissibility of evidence collected by the Police, ensuring it was obtained legally and constitutionally.
- Habeas Corpus: The Courts can issue writs of habeas corpus to require the police to produce detained individuals, overseeing and ensuring the legality of detentions.
- Police Misconduct Cases: The Courts hear and decide cases involving allegations of police misconduct, excessive force, or violations of Constitutional rights.
- National Police Service Act: This Act provides for Judicial oversight in various aspects of police operations and discipline.
- Prevention of Torture Act: The Courts play a role in enforcing this Act, which governs Police conduct during arrests and detentions.
- Criminal Procedure Code: This law outlines Court procedures that inherently provide oversight over Police actions in the Criminal Justice Process.
It’s important to note that while the Judiciary provides essential oversight, it doesn’t directly manage or control Police operations. This oversight is primarily exercised through the interpretation and application of laws, protection of rights, and the adjudication of cases involving Police conduct. This system aims to balance effective law enforcement with the protection of individual rights and adherence to the rule of law.
