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Tuesday, 5 January 2010

Better Policing (Reforms)

This IPS article provides an ideal opportunity to pen new reflections on our justice system, as this is an area much closer to my heart and fits in neatly with my current area of interest. We’ll see how far we can take this alongside the other series we are doing on “mining reflections” and “chiefs and development”. In the next series of "rethinking justice”", I hope to review a number of issues pertaining to our justice system, starting with the IPS observation below:

"In Lusaka two days before the by-election that picked Rupiah Banda (MMD) as president of Zambia, Mateyo decided to set aside areas to enable all political leaders in the election to have their rallies simultaneously.....This arrangement did not please the MMD, as it allegedly split the attention of voters. After Banda won the vote Mateyo was promptly out of a job, under the pretext that he was going abroad as a diplomat. He is still languishing in Lusaka."

At the heart of any approach towards better public safety is the capacity of the policing authorities to fulfil their constitutional duties. Understood dynamically, this “capacity” is inherently institutional and depends heavily on "operational independence" of the policing authorities. That is to say the extent to which the policing authorities can genuine fulfil their given responsibilities under the law depends on how much operational freedom the constitution gives them to fulfil those duties. Without this operational independence the police are effectively reduced to being a toy of political leaders (whose overiding desire is remaining in office). The IPS observation in many ways confirms what we have already known.

Under the current constitutional arrangement the President appoints the Inspector-General of Police, Commissioner and Deputy Commissioner of Police. These officers serve at the President’s pleasure. The Inspector-General has, subject to the orders and directions of the President, superintendence, direction and control of the Force. The President also has powers to determine the numbers of the various ranks within the Police as he sees fit. There is no security of tenure for the Inspector-General of Police and the other senior officers who serve at the President’s pleasure. This is illustrated by the fact that the job of Inspector-General of Police has changed hands many times in the last ten years. In short, the Republican President has significant de-facto control of this important institution. There’s really no difference between whether Mr Matero or Mr Kabonde (current IGP) is charge, the President and Minister of Home Affairs to all intent and purpose runs the police force.

Supporters of the status quo would of course contend that the current framework exists to “guarantee security” by ensuring the President has his man, after all he is the Commander in Chief. There's a feeling among some that given the precarious nature of our society too much independence is not desirable. The argument should not be entertained because we may as well ensure the entire branches are all made up of the President and his relatives. That way we would really ensure that all was well. We need to move away from paranoid structures and think more holistically on what delivers a more sustainable relationship between institutions with overlapping authority. In that vein, a better approach is to think of the police in terms of “social contract”. There should be clear operational independence guaranteed to the police in exchange for clear and effective accountability on their part. The policy should do their work unhindered and should be well remunerated for doing so In turn we should expect that that Zambians (as ultimate managers) expect each and every police officer to be held to account.

The IGP should ideally be appointed by an independent body, such as the Parliamentary Select Committee on Home Affairs or a service commission, which should be ratified by Parliament. The role of the Executive should be purely to set the targets for which the police are to meet annually. This will do much to ensure the public retains some degree of confidence. At the basic level this would focus on ensuring the police are fulfilling their duties, but perhaps more fundamentally it is to ensure that in their activities the police are not themselves above the law they are meant to protect. The following areas seem essential:

Signal equality before law : There must be a clear signal to the members of the public and the police that there are not above the law expectation that crimes they commit contrary to the law would be investigated and prosecuted. The easiest way to achieve this is to give the oversight institutions (ACC/DEC) freedom to investigate the police by decoupling them from the Ministry of Home Affairs and placing them accountable to autonomous board reporting to Parliament. These institutions would have power to investigate, arrest, and prosecute without reference to any other authority. As part of their remit, they would charged with investigating any serious crimes alleged against the police. This would send a strong signal to the police and help to serve as deterrent.

Improve detection : Provide effective legal protection for whistle blowers. Whistle blowing is a "public good" whose benefits go beyond the individual. In econ-speak the social benefits outweigh the private benefits. But more importantly, no one is going to be a whistle blower if the private costs outweigh the private benefits (there are psychological benefits and of course, reduced corruption benefits all Zambian citizens, including employees in government). So what we need is the change in incentives so that police officers find it attractive or less costly to blow the whistle. This calls for a combination of effective legal protection and financial rewards (see the discussion here).

Strengthen public scrutiny : There's need to strengthen the Public Police Complaints Authority (PPCA), the current oversight mechanism for providing checks and balances and in theory is meant to act as deterrent to absuse of police power and violation of people's rights. The PPCAwas established in 2003 with the power to investigate complaints from the public against the police as well as injuries or deaths in police custody. The PPCA submits its findings and recommendations to the Director of Public Prosecutions (DPP), IGP and ACC.

As an institution the PPCA has been a failure. Since its establishment the PPCA has received over 800 complaints, made near 50 rulings and dismissed only 13 officers for abuse of authority. Many people continue to lack information on their rights and where and how to seek redress against police brutality. As a result the PPCA has been totally inadequate in acting as a mechanism of keeping trust between people and the police. It has ineffective in reducing police cruelty, torture and degrading treatment of suspects. Last year for example, we saw unrestrained police violence with respect to university students, something that led to the IGP to apologise. Indeed in commenting on the levels of police brutality and the debate on compensation, Charles Mulipi aptly noted that if all people abused by the police asked for compensation, our country would be bankrupt. Such is the level of police brutality.

The problem of course is the PPCA lack of powers to ensure that the police comply with their recommendations. On many occasions the IGP has refused to comply with the recommendations of the PPCA and the Authority had no power to enforce them. This weakness means that there's no systematic or effective framework for ensuring that police officers responsible will be brought to justice. This failure creates the perception in the minds of the public and police officers themselves that the police enjoy immunity from investigations that might lead to the punishment of misconduct. Providing more human rights training to police officers, raising the educational requirements for new officers or other reforms cannot make up for the lack of an impartial, systematic and eff ective investigation into the violation of human rights by police officers.

Something drastic is therefore needed. An Independent Police Complaints Authority (IPCA) should be established to ensure proper investigation of crimes and other violations by members of the Police Service. An independent authority would receive citizens’ complaints, investigate them and take criminal and/or disciplinary action against police officers found to have perpetrated violations. To be truly eff ective, such an authority should have full powers under law to deal effectively with complaints, including enabling powers to order the release of persons held unlawfully and powers to ensure immediate access to police dockets, statements and post mortem examination reports.

Clarify the law : We must ensure that the laws relating to policing practices are comprehensive. There are significant areas where legal loopholes exist with respect to the police and other enforcement areas. A key part is that Zambia has not criminalised acts of torture and abuse by police officers. Although Zambia ratified the Convention Against Torture, it has not "domesticated" or ensured it's tenets are fully applied into law. There's therefore no deterrence to police abuse of human rights and degrading treatments of suspects and offenders. Torture should be made inadmissible in a court of law. This can be done partly by criminalising acts of torture by government law enforcement officers and other security personnel. The integrity of investigations and the safety of witnesses must be protected at all times.

The above of course would do much to ensure police are held accountable while operating with a proper sphere of operational independence. The other side is ensuring that our police have adequate resources to improve their "operational capacity". A lack of resource capacity in many key areas continues to undermine efficient service delivery and from the police perspective, it can be argued that the "police are not being looked after". If we want the very best from the police we must do more to resource them.

The FNDP Review 2006-10 reaches similar conclusions :

"Over the years, the working environment and functionality of these law enforcement agencies have continued to deteriorate. The agencies lack basic operational requisites while the housing situation for officers has persistently been a worsening scenario. Consequently, this has compromised the credibility and integrity of the law enforcement officers and has resulted in low morale of officers, rendering them less effective and efficient in the execution of their mandates."

Among the "recommendations" it makes includes : increasing funding to enable recruitment and retention the required skilled human resources; strengthening the capacity of training institutions that provide the human resource; undertaking a comprehensive training needs assessment with a view to determining the extent of human resource needs for the sector ; reviewing the curriculum for the different levels of training; and, review the conditions of service with a view to improve the morale of personnel. All perfectly obvious ideas. We can probably distil them into three specific categories for action :

More officers : There are currently only 13,000 police officers throughout the country. This is less than what is thought to be the ideal figure of double that amount. That total figure has remained somewhat static in recent years. The FNDP Review notes that accessibility to the policy has actually reduced in recent years : "For the year 2008, the staff ratio to the appropriate population in the Zambia Police Service was reported at 1:843, as opposed to the target of 1:580. The ratio increased from 1:653 in the year 2007 due to the non-recruitment of new officers to replace and increase the staff strength". One suspects that HIV / AIDS has also not helped with many officers dying leading to lost capacity. There's a significant need to increase recruitment.

More training : There is a particular need to provide more training to police. Professional training should include modules on accountability and public trust, with induction programmes should focus on what it means to be a police officer in a democratic society, with special emphasis on policing by consent. Training can be provided through existing institutions such as National Institute of Public Administration.

More resources : An aspect that goes hand in hand with improving the police and their agencies’ capacity to fulfil their functions optimally is that the resources they have for carrying out their jobs need to be improved too. These could take many forms and would require learning from other countries. For example, it might be good to have a government research centre on corruption sponsored by the ACC; there may be a UNZA / Government collaboration research programme on corruption. Such a research facility or criminal justice inspectorate be established to provide regular reports to Parliament on the state of policing and criminal justice system in the country. We may also consider establish modern forensics laboratory. Expertise from the Diaspora to help for many of these initiatives! There are likely to be many more resourcing ideas.

The question of resourcing of course brings the "how question" given the limited resources. My view is that law and order is paramount and therefore resources must be found. The first job of every government is to keep the public safe and secure. If as a country we kept to our original budgetary commitments set out in the FNDP, there would be sufficient funding to ensure the police are being looked after. The FNDP projected K371bn allocated for 2006-10, unfortunately only K125bn (or 33%) has been released. It appears that the problem is political will to carry through what we already know.

For completeness, readers should note Henry Kyambalesa's Tackling Crime (Guest Blog) were he proposed a more radical shake up. Needless to say, the approach presented above is slightly different HK's decentralised vision. There's certainly something to be said for "centralised" nature of policing services, but it remains my view that the primary focus should be to improve on where we are rather than create new structures.

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