The High Court has dismissed a petition in which an aggrieved man wanted the Independent Policing Oversight Authority compelled to take disciplinary action against two police officers.
In a judgement by the Court in Mombasa, the clarification of IPOA’s mandate was clearly interpreted, spelling out why it is ill informed to enjoin the Authority in matters beyond the provisions that guide civilian police oversight in Kenya.
Mr. Anamonye Anthony Ugochukwu, a Nigerian national was arrested at the coastal town of Mtwapa, Kilifi South, Kilifi County on June 11, 2022, which he termed “unlawful,” prompting him to move to Court.
Allegations of violations of rights and freedom
He also felt he was “discriminately targeted and stopped” before being arrested and detained at the local police station alongside his fellow countryman Mr. Okorare Emmanuel Tobore. They were suspected of being in Kenya illegally.
Mr. Ugochukwu also informed the court that “he had been targeted solely because he had earlier lodged a complaint with the Independent Policing Oversight Authority against their colleagues stationed at Bamburi police station.”
The complaint, which IPOA responded to in court, had happened earlier on March 19, 2022.
Complaints
He lodged a second complaint on June 17, 2022, this time aggrieved by the actions of officers from Mtwapa Police Station, in the matter that was settled in the judgment by Justice Olga Sewe on August 21, 2023.
In court, Mr. Ugochukwu “blamed IPOA for his woes, contending that despite lodging his complaint, the Authority slackened in its constitutional duty to hold the officers concerned accountable for their misconduct.”
Further in his prayers to the court, he asked that IPOA be compelled to take disciplinary action against the officers who took part in “violation of his rights and fundamental freedoms.”
Mandamus (the compelling orders the petition was seeking against IPOA) is first, employed to enforce the performance of a public duty, which is imperative, not optional, or discretionary, with the authority concerned. Secondly, it is used to enforce the performance of public duties, by public authority, and not when it is under no duty under the law. Thirdly, mandamus may be issued directing the concerned authority to act according to law.
The Judgement citing Republic vs Commissioner of Lands and another exparte Kithinji Murugu Mágere Misc Application No. 395 of 2012
IPOA complaints processing and preliminary inquiry
In response, two IPOA officials took the court through the process initiated in its endeavour to ensure that it lives up to its mandate – to hold the Police accountable to the public in the performance of their functions.
The process began with a preliminary investigation that involved a visit to Mtwapa Police Station and an initial report was presented to the regional officer in-charge of Criminal Investigations at the Coast.
The Authority also informed the court that through its intervention, Mr. Ugochukwu was refunded the cash bail he had posted to secure his release and an abstract for a lost passport was also given back by the police.
Ultra vires – beyond mandate
In taking those steps, the Authority argued that it had taken appropriate action and therefore, “the petition was prematurely filed.”
The counsel for IPOA further asked the court not to compel the Authority to take disciplinary action against the officers, arguing that it would be tantamount to the Authority overstepping its mandate.
Justice Sewe agreed with the argument adding that the Authority “has no statutory mandate to take disciplinary action” against the officers and directing such an order “would be misplaced.”
Among other consideration, Justice Sewe dismissed the petition, having found it lacked merit. Besides the DCI Constable, Diba Halake and Station Commander Biberone Umanzi, the petitioner also wanted IPOA be compelled to take disciplinary action against the Inspector General of the National Police Service.