Implementation of Community Policing – Nyumba Kumi initiative must be within the Law and Guidelines and Objectives provided

Omahe Mwita Wandwi & 3 others v Republic

High Court of Kenya at Migori

Criminal Appeal no 18 of 2015

AC Mrima J

16 November 2015

Reported by Phoebe Ida Ayaya

Brief facts

The Chairman of the Locational Community Policing Group who was the first accused person before the trial court, was attacked by two armed robbers about 200 meters from his home. He sustained some injuries and sought medical intervention at Komamange Dispensary and later on reported the matter to the Kehancha Police Station. Some members of public visited the scene later on and recovered two spent cartridges and handed them over to the Police as the Area Chief hurriedly convened a public meeting (baraza) to discuss the said events with the hope of recovering the firearms that had been allegedly used in the said attack. The meeting resolved that the families of those attackers do produce the said firearms, as they were a security threat. The recovery of the firearms was taken over by the local Community Policing Committee members. The complainant stated that his cows had been taken away during the recovery of the firearms and thus was stock theft. The appellants claimed that the cows were not for the complainant but his brothers. The evidence on the ownership of the cows was not shaken at all. It was well corroborated and even the appellants’ one-time allegation that the cows belonged to the complainant’s brother remained a bare assertion. As there was no evidence to the contrary it remained that the cows that came from the homestead belonged to and were the owned by the complainant. It was clear that after the meeting it was the community members who took the initiative to recover the firearms and came up with the strategy of taking away of the cows from the two families of the people who were allegedly in possession of illegal firearms.

Issues

i. What were the Guidelines and objectives of community policing?

ii. Whether the community policing members were in clear breach of their mandate as provided for by the Constitution of Kenya and the Fourth Draft Guidelines for the implementation of Community Policing – Nyumba Kumi initiative

iii. Whether there was any possible justification on the part of the appellants as members of the community policing by the actions they undertook upon the complainant and his property

iv. Whether the sentence meted upon the appellants was merited and if the court had discretion set it aside and order a non – custodial sentence

Criminal Law –mens rea—malice afore thought or mens rea –instances when mens rea was established– where there was a pre-arranged plan to commit an offence of stock theft and circumstances when common intention may be inferred – where evidence on record shows that members of the community policing group had indeed raided the complainant home and took his property.

Constitutional Law-fundamental rights and freedoms-right to public safety and security -authority to maintain safety and security-where there was a breach in implementing the same- whether the fact that the community policing members were in breach of their mandate as provided for in the law and the guidelines – article 10 Constitution of Kenya, 2010; Fourth Draft Guidelines for the implementation of Community Policing – Nyumba Kumi initiative

Constitutional law-fundamental rights and freedoms-limitation of rights- whether maintaining safety security would limit some fundamental rights and freedoms - Whether there was any possible justification on the part of the appellants as members of the community policing by the actions they undertook upon the complainant and his property

Criminal Practice and Procedure – sentencing – appellants convicted and sentenced– appeal on grounds that the Magistrate Court erred in convicting the appellants by imposing a harsh and excessive sentence – whether the sentence passed was lawful in the circumstances and if the court could review and set aside the order

Held

1. It was not on record that when the community policing members decided to and pursued the recovery of the illegal firearms, they had been asked to do so by the police neither was the operation made in liaison with the police. The same appeared to have been an independent action on the part of the community policing members to the total exclusion of the police.
2.  The Fourth Draft Guidelines for the implementation of Community Policing – Nyumba Kumi (Usalama wa Msingi) stated objectives of the community policing and did not include such acts as undertaken by the appellants. It was clearly stated that community policing was not vigilantism, not a commercial enterprise, was not a political forum, was not a parallel security system; was not coercion or extortion; was not a replacement of village elders, neither was it a replacement of peace committee and was not about spying on one's neighbour.  
3. The actions by the community policing members that were complained of were in clear breach of their mandate. Those actions amounted to running a parallel security system to the exclusion of the police system and/or any other such system in place and were anchored on coercion and extortion and to a very large extent were an organized commercial enterprise. The community policing members did not even heed the intervention of the village elder meaning that they disregarded his role and carried themselves as a replacement of the village elders. That was far from the good intentions of the community policing which the government had so far spent considerable resources in putting it in place. It was the likes of the appellants in serving as such members that end up portraying such a noble and well-intended social outfit in bad light.
4. It was seen that the said actions of the appellants who were then serving as the community policing members were not only contrary to the guidelines but openly and clearly in total contravention of the Constitution as well as the National Police Service Act. They curtailed the liberty of one person without any legal justification at all and took away the property of the complainant without any legal basis.  Being holders of public offices their conducts complained of could not stand the test of article 10 of the Constitution.
5. In as much the court recognized the important role played by the community policing in Kenya, it had to be made absolutely clear that the said members should and could only discharge their mandate within the defined confines of the Constitution and the law. That was the only way such players could bring good repute and standing to such a well-intended policy.
6. The court took a great exception to such actions that tended to take the painful gains attained in the fight for human rights to the dark ages in the name of fighting crime. It was always important for the institutions mandated to fighting crime to so take their role more seriously rather than illegally delegating such a sensitive role to people who may not have the necessary expertise in the discharge of such a service. It would have been a totally different thing had the police accompanied the community policing members on their assignment to recover the illegal firearms, as they would not have allowed such blatant abuse of rights and the law to be undertaken. The community policing members should therefore be adequately trained on their roles and how to lawfully discharge their important mandate.
7. There was no justification at all on the actions in taking and retaining the six cows belonging to the complainant in the name of fighting crime. The Police and the other security agents had the necessary capacities to fight crime within the dictates of the law and the Constitution. The community policing members should not therefore carry themselves as a parallel security system and had no mandate to coarse or extort the public in the name of preventing crime. They could only remain true to their calling as such members and that any such member or members who engaged in actions contrary to law could not be expected to take refuge in the perceived legal insulation in the name of fighting crime. They risked facing the law accordingly. 
8. The Appellants committed the offence of stock theft and the court rightly so found them guilty and convicted them.  The conviction was affirmed. The appellants had been behind bars for close to one year and the right message had been sent to holders of like offices. By taking that into account and without finding any fault on the part of the sentencing court and with respect to the court, reviewed the sentence to a non-custodial one.

Appeal partly allowed. The Appellants to serve Community Service Sentence at Kehancha Law Courts for a period of one year, the Community Service Supervisor to be filing monthly progress reports with the Kehancha Law Courts