About a Police Force

Different sides of the Commonwealth:
Counter-Terrorism Police in Kenya and New Zealand

Responses to terrorism throughout the Commonwealth have had a significant effect on policing. Generally, responses have involved the creation of two broad new areas of counter-terrorism security. Firstly, many countries have created intelligence structures, which work to prevent terrorism through analysing intelligence and facilitating cooperation in information exchange between different policing jurisdictions. Secondly, countries have created specific units directly responsible for on the ground intervention and protection against terrorism. These units fall under the jurisdiction of the police or military, or sometimes both.

Here, two very different anti-terrorism structures - one from Kenya and the other from New Zealand - are examined. Both countries have established specific anti-terrorism units designed to address incidents outside the normal work or capabilities of other policing units. The background, functions, structure and powers of each country's anti-terrorism policing units are brought into focus and recent case studies of the Units action are considered to reveal how the counter-terrorism imperative has been addressed by each nation's police organisation and to what effect.

Kenya: Anti-Terrorism Police Unit

Background

At the United Nations sixty-second General Assembly in October 2007, Kenya's delegate to the legal committee emphasised that Kenya had implemented many measures to combat terrorism, including the ratification of twelve of the thirteen international terrorism conventions, draft legislation on money laundering, and the creation of a specialised unit within the Attorney General's office to prosecute terrorism and money-laundering cases. ¹

Unlike many other African states, Kenya has not yet enacted specific anti-terrorism legislation, even though then Foreign Minister (Stephen Kalonzo Musyoka) introduced the controversial Suppression of Terrorism Bill to Parliament in June 2003. Despite the absence of specific legislation, the Anti-Terrorism Police Unit (ATPU) was established as a division of the Kenya Police under the Kibaki government in February 2003.

Opposition to the activities of the ATPU has focused on the Unit's open discrimination and targeting of Muslims. Since terrorist attacks on the US embassy in Nairobi in 1998, Muslim groups have accused the government of harassing the Muslim population under the pretext of fighting terrorism and investigating radical Islamic terrorists. Since the formation of the ATPU, this harassment has increased and in 2006, hundreds of Muslims protested in Nairobi for the Unit to be disbanded.

Function and Structure

The ATPU are a unit of the Kenya Police Force. The force is established and governed by the Police Act 1988 (Cap 84) and headed by the Commissioner of Police who is appointed by the President under the Constitution of Kenya.

Kenya's law enforcement is uniquely divided into two streams, the Kenya Police and the Administration Police.² Historically, Kenya has had a divided legal system and the different streams dealt with different types of law; the Kenya Police dealt with civil matters (reporting through a police structure to a police commissioner) and the Administration Police dealt with customary law (reporting through a local provincial council structure to a commandant who reported to a government Minister). Even though the customary law system has been abolished, Administration Police still operate and report to local district commissioners who then report to the Minister of Internal Security.³ They are governed by the Administration Police Act.

The force and the Administration Police have various specialised units addressing different security threats. The principle units within the force are the Criminal Intelligence Department (CID) and the General Service Unit (GSU). Smaller units, established to deal with specific areas of crime and threats to security include the Kenya Airports Police Unit, Railways Police, Traffic Police, Anti-Stock Theft Unit, Anti-Motor Vehicle Theft Unit, the Diplomatic Police and the team under analysis here - the Anti-Terrorism Police Unit.

Specialised units within the Administration Police include the Security of Government Buildings Unit and the Rapid Deployment Unit. Both are separate from the military, which defends Kenya from external threats to security and is comprised of the army, air force and navy. While their precise roles are blurred, generally the Kenya Police Force is more active in urban areas, while the Administration Police often operate more in rural areas.

The Administration Police have also picked up anti-terrorism duties. According to a speech by the British High Commissioner to Kenya in April 2007, anti-terrorism activities have become the most important role of the Administration Police. At the opening of a British Funded Administration Police Security Operations Centre, established to assist in the "future management of security… and contribute to… counter-terrorist defences in North East and Coastal Provinces", the British High Commissioner congratulated the Administration Police for security operations that occur along the border of Somalia, which the High Commission has been assisting through funding, installing radios and training on counter insurgency operations and vehicle patrols.⁴

The ATPU, a unit of the Kenya Police, is active mainly in Nairobi where its command is based, but also works in Mombasa. Nicholas Kamwende became Commandant of the ATPU in 2004. The internal structure of the unit is quite similar to the structure of other units of the force, however it does not operate under a regular chain of command. For example, unlike the heads of other units, the Commandant of the ATPU reports directly to the Commissioner of Police, which is out of line with the otherwise existing police hierarchy, where there are often several other levels of authority that decisions pass through.

It also enjoys a significant amount of autonomy from the other units, standing apart from them in procedural and operational requirements. In conversation with CHRI, the chairman of a Nairobi-based human rights civil society organisation commented that the ATPU seem to act alone from the rest of the force, without adhering to regular organisational structures, "as if they are a law unto themselves". He gave a common scenario of the displaced chain of command, where officers from the unit, at the level of corporal or sergeant, take a suspect into a police station and issue orders to the station officer of how to deal with the suspect, overriding the station officer's most senior office, the Chief Inspector.

The authority that officers within the anti-terrorism police unit have assumed, and the autonomy they have from other units to act under an undefined set of procedural and operational requirements, has created bad blood between the ATPU and other units within the force. The associated perks that come along with being an ATPU officer have also increased this ill-feeling. The Unit are widely considered to be the best resourced within the Kenyan police, with the highest standard of equipment. Officers from the ATPU are speculated to get better allowances and better cars that they can also be seen driving off duty.

ATPU officers wear no uniform, carry out their duties in casual clothes, are heavily armed and often carry concealed weapons. Despite their lack of uniform, for many who are familiar with their presence in Nairobi, they are easy to spot.

The Unit has come under specific criticism for taking resources and security focus away from other units within the police, undermining work by other police units, dealing with issues such as high levels of crime Nairobi.

Powers and Duties

While the precise role of the ATPU is not clearly defined - due to the lack of definition of the term "anti-terrorism" - it appears to carry out specific investigations and arrests related to terrorism, conduct specialist operations (sometimes joining up with other units of the force to do so⁵) and plays a major role in the interrogation of terrorist suspects.

Where in many countries of the Commonwealth, police have been given increased powers by anti-terrorism laws, Kenya has still not enacted legislation addressing terrorism. The draft Suppression of Terrorism Bill was proposed by the Kenyan Government in 2003, shortly after establishing the ATPU. It came up against strong criticism for its potential to allow for the violation of constitutional and human rights protections and its potential to be misused to silence political opinion, openly discriminate against marginalised groups and limit freedom of expression. Among the main concerns were that the proposed definition of terrorism was extremely wide and thus, could allow police to carry out arbitrary arrests and investigations under the guise of acting under the new law. Additionally, a range of minor criminal offences would be classified as terrorist acts. The Bill also reversed the presumption of innocence, for example requiring anyone suspected of harbouring a terrorist had to prove they are not. Again this would allow police wide discretion to arbitrarily arrest anyone, needing little evidence to prove suspicion. Also proposed are provisions that allow officers above the rank of Inspector to hold suspects incommunicado for up to 36 hours without access to a lawyer or family members. This contravenes Kenya's Constitution, which protects fundamental human rights, including the right to appear before a court within 24 hours and the right to legal representation. Although the Bill has not yet been passed, it has not yet been withdrawn, and a revised version is due to be presented before Parliament in the not too distant future.

Despite the controversial provisions of the Suppression of Terrorism Bill not being in force, human rights activists in Nairobi claim that the APTU often act as if they were empowered by similar law, acting under rules of its own that allows for fundamental human rights to be disregarded.

Since the creation of the ATPU in 2003, there have been many complaints it is using its unwritten powers to actively discriminate and target Muslims with harassment, arrests and detentions. Muslims already experience discrimination by the police in variety of ways. In one example, when reporting on good behaviour bonds, where standard procedure is to report to the Criminal Investigations Department (CID) in Nairobi's centre, Muslims are required to travel further out of town to the Interpol office where they are subject to a different procedure. Police, immigration and other security officers often take advantage of the different procedures accepted to apply to Muslims by demanding bribes for normal treatment.

Oversight

The Kenya Police Service Strategic Plan 2004-2008 (page 12) highlights that, "The chief enemy of accountability is impunity - a state of affairs in which police officers can engage in misconduct, crime and violations of human rights and be confident that they will not be disciplined or held to account for their actions…Impunity exists in the absence of effective mechanisms for investigating and punishing police misconduct."

With this in mind, it appears the Anti-Terrorism Police Unit acts with impunity. Its actions are not closely monitored and nor is there evidence of systems to address misconduct within the Unit.

At present, the most immediate oversight of the ATPU appears to be coming from the courts. In July 2007, a human rights group filed an application to the High Court in Nairobi complaining that a terrorist suspect had been held by the ATPU for more than 24 hours before being presented before a court or charged, as required by law. In response to the petition, the judge issued a summons for the Commander of the ATPU, Nicholas Kamwande, to testify on his knowledge of the whereabouts of certain individuals who had been arrested by ATPU officers and not seen since. Kamwende stated before the court that the suspects had been freed a day after their arrest. The questioning of Kamwende was adjourned to recommence at a November hearing, where he will be subject to cross-examination on the issue.

Another accountability mechanism that has potential is the recently formed Presidential Committee. In the lead-up to the Presidential elections to be held on 22 December, President Kibaki announced the establishment of a committee with a mandate to investigate police harassment and discrimination of Muslims. Reports from the first public peoples hearing describe the emotional testimonial evidence from individuals alleging the arrest and rendition of their family members by the ATPU. It remains to see if the Committee will have the power to adequately investigate the issues that arise from the evidence or form recommendations that will be acted upon.

Case study: The ATPU and Kenya’s Renditions

In August 2007, the Muslim Human Rights Forum, a Kenyan civil society organisation, released a report revealing a specific instances of the ATPU’s operations and the human rights abuses that had been perpetrated during the detention, interrogation and disappearance or rendition of Kenyan citizens, arrested on suspicion of terrorist ties. It claims that the ATPU played a significant role in facilitating extraordinary rendition: the transfer of terrorist suspects to detention outside their country for the purpose of interrogation.

Human rights groups have argued that Kenyan authorities, including the ATPU, captured more than 150 people fleeing war in Somalia at the beginning of 2007 and placed them in secret detention. This process has been labeled the “African Guantanamo”, and allegations have emerged of suspects shackled and flown to Somalia and then Ethiopia to be held incommunicado and interrogated without access to lawyers or contact with their families.

Many further allegations have emerged that are currently being raised before Kenyan courts. The Muslim Human Rights Forum have led accusations in some of these cases and claim to have proof in the form of statements from the victims of renditions, police affidavits and flight details of those who have been removed to alternative detention locations. More hearings will take place in late November, raising many of the accusations that have been leveled at the ATPU, the Police Commissioner and the Government for their involvement in renditions. One recent application filed by the family of a suspect of Kenyan citizenship claims that he was deported to Guantanamo Bay in Cuba and wants answers as to why. While the Kenya Police Force publicly claimed to have released him in March, the family allege his name appeared on a US press release of Guantanamo Bay prisoners. The family are requesting the judge to summon the Internal Security Minister, the Police Commissioner and the ATPU Commandant to appear in court and produce records and statements taken in their investigation of the suspect.

The Kenyan Government, in repeated public statements from Internal Security Minister John Michuki, has denied any renditions are taking place.

Other anti-terrorism policing in Kenya

Outside of the ATPU, there have been other broader efforts to combat terrorism, both within Kenya’s borders and across the region. After Al Qaeda bombed the United States embassies in Kenya and Tanzania in August 1998 – killing 213 people (201 Kenyans and 12 Americans) and wounding 4,600 people in Nairobi – legislation was introduced establishing a special branch within Kenyan Police, the National Security Intelligence Service (replacing the former Directorate of Security Intelligence). Kenya had previously been far from a central focus of the US, yet after the bombings it cooperated with US investigations of the attack and supported the US position that terrorist organisations were flourishing in Kenya.

After 11 September 2001, the US established a strong anti-terrorism presence in East Africa (Kenya, Uganda, Tanzania) and the Horn of Africa (Ethiopia, Eritrea, Djibouti, Kenya, Somalia and Yemen). The US now has an established military base in Djibouti known as the Combined Joint Task Force-Horn of Africa (CJTF-HOA) that is responsible for fighting terrorism in those seven countries. With almost 2000 American military and civilian personnel, its stated mission is to “to detect, disrupt and defeat transnational terrorist groups, to counter the re-emergence of transnational terrorist groups and to enhance long term stability in the region.”⁶ This is just one part of a US-led US$100 million initiative to counter terrorism, of which Kenya is a central part.

New Zealand

Background

The approach of the New Zealand Police to security underwent significant changes after 2001, despite a widespread acknowledgement among the police and public that the actual terrorist threat to New Zealand was low. The enactment of anti-terrorism laws and increased funding for border security was primarily to get in step with the international standard, to satisfy international obligations under Security Council Resolution 1373 and also in fear that countries that did not might unwittingly become soft targets or havens for terrorism.

The principle step taken by New Zealand’s police was to improve intelligence networks through a number of steps: creating police liaison offices overseas, creating a Strategic Intelligence Unit at the Police Commissioner’s office to support the information received from the liaison officers, and setting up a Departmental Security Officer to provide expert advice to the police on strategic security matters. The new unit established within the police to deal specifically with terrorist activities is the Special Tactics Group. They answer to the Counter-Terrorism Assistant Commissioner, Jon White, and the New Zealand Police Commissioner, Howard Broad.

The Terrorism Suppression Act 2002 came into effect in October 2002. While it creates and defines the crime of terrorism and the designation of terrorist groups within New Zealand, it mainly focuses on the financing of terrorism, and unlike many anti-terrorism laws found in other Commonwealth countries it gives no extended powers to the police to arrest, detain, use force against, or interrogate terrorism suspects.⁷

On 13 November 2007, a majority of New Zealand’s Parliament passed into law a new Terrorism Suppression Amendment Bill. Its primary aim was to allow for the Prime Minister to designate certain groups and individuals as terrorists, a decision reached in a three-yearly review and not open to challenge in the courts. It also created a new offence of committing an act of terrorism with the penalty of a life sentence. The amendment was criticised, primarily by the Greens and the Maori Party, and was followed by peaceful protests outside New Zealand Parliament and the Police Commissioner’s office the following day. The protests were primarily against the conduct of the anti-terrorism police in a raid and arrests carried out in October (see case study below).

Structure and Functions

The website of the New Zealand Police lists a number of specialised units and groups that are responsible for anti-terrorism policing. It states that the Police Commissioner is responsible for the operational response to threats to national security, including terrorism. In 2002, an Assistant Commissioner position was created to head counter-terrorism and national security matters.¹⁰ Also, a number of full time police groups were established, including a Special Tactics Group to respond to terrorist emergencies, a Specialist Search Group, a Stategic Intelligence Unit and the posting of additional police to airports around the country. Other security police units that have been around for longer include the Armed Offenders Squad, which responds to incidents involving firearms. The Special Tactics Group is the first and only unit so far to have acted under the Suppression of Terrorism Act.

Powers and Duties

Traditionally, New Zealand has had an unarmed police service, however both the Armed Offenders Squad and the Special Tactics group are authorised to carry firearms. While there is nothing within the Terrorism Suppression Act 2002 granting new powers to the police, there has been much criticism of the decision to use anti-terrorism police to carry out a raid and a mass arrest in the north of New Zealand in October, particularly since no charges of terrorism were laid under the Suppression of Terrorism Act.

Case Study: Anti-terrorism Raids

In early October, police carried out anti-terrorism raids across New Zealand – in Auckland, the Bay of Plenty and Wellington – and arrested 17 Maori activists on suspicion of links to terrorism and arms possession. It was the first time the police had used the Suppression of Terrorism Act, which, along with the Arms Act, was used to obtain search warrants. The raids were carried out on alleged weapons training and bush survival camps, in relation to which the police claimed to have intercepted security threats and alleged terrorist attack plans.

Shortly after the arrests, a fierce debate began over the police tactics that were employed. Approximately three hundred armed police officers from the special tactical response unit had taken part, dressed in full riot gear. The community who faced the heaviest raids in the area of Ruatoki in the Bay of Plenty, claimed that the police were heavy handed and acted outside their powers. A number of bystanders alleged they were forced out of their cars by armed policemen and photographed against their will and the Tuhoe people of the area claimed that armed police boarded a bus of school children while making road blocks. Community leaders accused the police of placing the community “under siege”.

The second debate to unfold was the role of the Suppression of Terrorism Act in the arrests. Following widespread criticism of the laws from human rights activists, New Zealand’s Solicitor General announced in an unexpected twist, that the Act was “unnecessarily complex and incoherent” and could not be applied to the case. Instead those arrested would face charges under the Arms Act, accused with the illegal possession of firearms and other weapons.

Slowly the suspects have been released from custody facing firearms charges, but no terrorism charges. On 12 November the last four were released on bail to appear in court for a pre-depositions hearing in December.

The need for the police to use anti-terrorism laws or carry out the operation in such dramatic fashion has been questioned. One analysis commented that “We can agree with the solicitor-general when he said that the police were right to investigate a group of political activists playing with guns in the mountains. But the police’s commonsense quickly ran out as they turned it into a giant anti-terrorism operation… Anti-terrorism staff arranged ill-fitting evidence, on people they’d already defined as threats, into the picture they were being paid to find.”

In the days following the raids, the Maori Party declared that the police operation had put race relations back 100 years and the Maori population around New Zealand, along with much of the general public, expressed their opposition to the raids and New Zealand’s anti-terrorism measures. Others said that it had carried a negative stereotype of the Tuhoe people of that area, presenting the community as “terrorists”. On 14 November the Tuhoe people from where the raids took place, led a peaceful protest march against the police response to Wellington, New Zealand’s political centre.

Conclusion

Although facing very different circumstances, the formation of anti-terrorism units in both Kenya and New Zealand has had a considerable impact in changing role and function of each police force, and the public’s perception of the role of the police.

Although they sit in stark contrast to one another, the anti-terrorism police units in each country are both suffering from a lack of public trust and the public perception that they are designed against a notion of terrorism that does not fit with the primary concerns of the country. There is the belief that anti-terrorism police are being used, or have the potential to be used, to illegitimately target marginalised groups instead of real security threats, in the process infringing the fundamental democratic rights police should be employed to protect.

Gudrun Dewey
Programme Officer
International Police Reforms Programme
Commonwealth Human Rights Initiative

1.   Wanjuki Muchemi, GA/L/3319: http://www.un.org/News/Press/docs/2007/gal3319.doc.htm
2.  The Kenyan police force are governed under the Police Act , Police Regulations, Standing Orders and a Police Manual 1997, which is a practical guide on good practice, proper procedure and lawful action to be taken in a given situation.
3. See http://www.administrationpolice.go.ke/vision.htm.
4.   British High Commission Nairobi (2 April 2007) "Speech made by British High Commissioner Mr Adam Wood at Opening of the British Funded Administration Police Operations Centre, Embakasi:
http://www.britishhighcommission.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1059
736909512&a=KArticle&aid=1175584175228
5.   For example, shortly after it was established, the ATPU teamed up with the GSU to arrest over 100 people in anti-terrorism operations in the Eastleigh area of Nairobi, home to many refugees from Somalia and Ethiopia: See AFP, "More than 150 foreigners detained in Kenya amid terrorism fears" (26 May 2003).
6. David H Shinn, “Fighting Terrorism in East Africa and the Horn” (September 2004) Foreign Service Journal 36, 41.
7. See New Zealand Police, New Zealand Suppression Act Information: http://www.police.govt.nz/operation/national/act-info.html.
8. (12 August 2006) “Debunking Rumours About new Anti-Terrorism Unit”: http://www.nzherald.co.nz/category/story.cfm?c_id=32&objectid=10395864
9. The Commissioner has a role on the Officials Committee for Domestic and External Security Coordination (ODESC), which is made up of a range of government and NGOs to manage New Zealand’s wider counter-terrorism efforts.
10. Under the Police Act 1958, s 4 “each assistant commissioner shall have and may exercise any of the powers, authorities, duties and functions of the Commissioner as the Commissioner may delegate to him either generally or in any particular case.”.