The dust is settling on the terror attack that began on Saturday, September 21, 2013, in Nairobi’s upmarket Westgate Mall. After four days of engagement between combined Kenyan security forces and what remains an unclear number of terrorists, more than sixty people and five assailants have been killed, while eleven suspected assailants have been arrested.1The exact numbers of casualties and hostages remain unclear. The number of terrorists provided here is based on president Uhuru Kenyatta’s official address to Kenyans on September 24. Earlier government reports had indicated that ten suspects were arrested at the airport and that there were ten to fifteen assailants in the mall. The conflicting numbers point to the government’s lack of preparedness for an operation of this complexity (See Uhuru Kenyatta, “President Uhuru Kenyatta’s Address to the Nation at the Conclusion of the Counter-terrorism Operation at Westgate Mall, 24th September 2013,” State House Kenya, http://www.scribd.com/StateHouseKenya (accessed September 29, 2013). As we draw lessons from this crisis, it is clear that debates about an appropriate counterterrorist response targeting Al Shabaab,2Al Shabaab is a Somalia-based militant cell of Al Qaeda. The Westgate attack has been interpreted as retaliation for Al Shabaab losses incurred during Kenya’s incursion into Somalia in 2011. The Kenyan government justified Operation Linda Nchi, as the incursion was known, as a response to Somalia’s ongoing instability, which represented a border threat to Kenya. which has claimed responsibility for the attack, and the fragile nature of the Somali state will dominate analysis on this issue. I would, however, look inward at the state of our security system in Kenya. The fact that close to fifteen well-armed assailants stormed a mall at peak hour and police were only able to respond one hour later points to the soft underbelly of our security sector and the inherent weakness in our disaster risk management system. It is also noteworthy that three hours later, the police continued to treat the events at Westgate as an armed robbery, and not as a more sophisticated attack, which points to the fragmented flow of information from the intelligence service to the police and other security agencies.
The Westgate siege affirms an observation made by many concerned Kenyans over the years, and more fervently since March: that there is a nexus between the high levels of insecurity in the country and the operational weaknesses of our security forces. Many Kenyans have questioned the ability of our forces—both in terms of operations and skills—to effectively respond to daily threats when they occur. The most recent evidence of operational decay was during the August 2013 fire at Jomo Kenyatta International Airport (JKIA) in Nairobi. What was initially a small fire escalated into a full-blown inferno that gutted the international arrivals lounge. The JKIA fire was an indicator of the dangerous limitations of our disaster management system.
More broadly, Kenyans are terrorized daily by high levels of localized insecurity. Immediately after the general elections in March 2013, there were a series of violent, seemingly indiscriminate murders in western Kenya. This spate of violence in Bungoma continued unchecked for over two weeks as the police argued that they had insufficient intelligence to determine the motive and identities of the attackers. In the same period, there was a spike in clan-associated conflict in northern Kenya involving small arms and other light weapons. Beyond what appears to be organized terror by vigilante groups against local communities, the number of car jackings, highway robberies, and home invasions has more than doubled in the last year.3See US Overseas Security Advisory Council, “Kenya 2012 OSAC Crime and Safety Report,” https://www.osac.gov/Pages/ContentReportDetails.aspx?cid=12277. The police remain a reactive force with only moderate proactive law enforcement techniques and initiative to deter and investigate crime.
Security Sector Reform: Real or Cosmetic?
Conversations on security sector reform in Kenya began in earnest after the 2007–2008 postelection crisis and focused on the Kenyan Police Force, since the force had been implicated in extrajudicial killings. The National Task Force on Police Reforms was established in May 2009 and mandated to make proposals for reorganizing the police. Some of the major changes that resulted from the task force’s work include the National Police Service Act, passed in August 2011, which merged what had previously been two separate police forces and established the position of inspector general of police, with authority over the new organization. The act also placed limits on the force that police are allowed to exercise, stipulating that an officer may use “force and firearms, if and to such extent only as is necessary.”4Government of Kenya, National Police Service Act, No. 11A of 2011 (Nairobi: Government Printer, 2011). A civilian board was established to oversee the recruitment and appointment of police officers, to review standards and qualifications, and to receive complaints from the public and refer them to the Independent Policing Oversight Authority (IPOA) and other government entities.5Ibid. Since March 2013, the inspector general of police has repeatedly requested an increase in his powers, arguing that his management role is constrained by the current provisions, which give the National Police Service Commission (an independent government commission) responsibility over hiring and firing as well as disciplinary action.
Problems remain in the broader oversight and democratization of Kenya’s security services. In the quest to increase foreign direct investments, government officials have been prone to offering foreign nationals unchecked access to Kenya as well as other incentives, which has implications for the registration of persons, movement of goods, and the institution of a broader culture of noncompliance with the law. In 2006, two Armenian brothers popularly known as “the Artur brothers” received senior-level police accreditation under unclear circumstances and were involved in a range of criminal activities while they were in Kenya, during which time they had full police protection.6See Standard Media, “Revealed: The Secrets of the Artur Brothers,” May 26, 2012, http://www.standardmedia.co.ke/?articleID=2000058816. See also Harun Ndubi, “Kenya: Lessons for Kenya in Chinedu’s Deportation” The Star, July 8, 2013, http://allafrica.com/stories/201307090216.html (accessed September 24, 2013). These and other incidents point to the lack of transparency in the organizations charged with homeland and state security.
Oversight responsibility for Kenya’s security sector lies with the joint parliamentary committee on defense and national security. However, processes within Parliament reveal how limited the oversight committees are in effectively handling their responsibilities. In October 2011, an intelligence bill made its way through Parliament without much debate. A citizen-led watchdog platform pointed out the process flaws and operational loopholes involved in the passage of the law. Unlike other bills, the National Intelligence Service Bill 2011 did not go through a process of cabinet approval:
The bill originated from the National Security Intelligence Service (NSIS) and went straight to the Constitution Implementation Commission (CIC) by-passing the Cabinet and scrutiny by that body. The Assistant Internal Security Minister Orwa Ojode recently stated that his Ministry, the Ministry of Internal Security, had not even received the bill. He stated that the Cabinet could not interfere with matters of defence and security.7Moreen Majiwa, “National Intelligence Service Bill,” Mzalendo blog, October 11, 2011, http://www.mzalendo.com/blog/2011/10/11/national-intelligence-service-bill/ (accessed September 24, 2013).
The limitation of parliamentary oversight was further illustrated during a public vetting process for the cabinet secretary for defense, Raychelle Omamo in 2013. When the cabinet secretary was questioned about her role in increasing the transparency of defense contracting, she argued that this was an area that would remain outside parliamentary scrutiny because of its sensitive nature. Security analysts8Todor Tagarev, Building Integrity and Reducing Corruption in Defence (Geneva: Geneva Centre for the Democratic Control of Armed Forces, 2010). have noted examples of wide-scale international corruption within defense contracting, such as the 1999 arms deal scandal in South Africa.9See “Special Report: The Arms Deal,” Mail and Guardian, http://mg.co.za/report/the-arms-deal (accessed September 24, 2013). The consequences of such corruption are clear. Limited oversight of defense contracting can lead to inappropriate equipment purchases and increase budgetary and operational inefficiency. The mantra “on a need to know basis” continues to serve as a veil for massive loopholes in the democratic governance of Kenya’s defense forces.
Another law, the 2012 Prevention of Terrorism Act, which was passed after massive debate and revisions because of fears of religious and ethnic profiling, is now up for debate in the Kenyan National Assembly in the wake of the Westgate siege. Raw data gathered from social media responses to the siege suggest a popular desire for punitive measures, the introduction of profiling, and greater leeway for security forces to act on intelligence reports. If the experience of the Patriot Act in the United States and comparable laws in the United Kingdom are anything to go by, we are likely to witness a decrease in the attention paid to the rule of law as Kenya embarks on its counterterrorism efforts. Such measures would fly in the face of extensive research on the drivers of youth radicalization in Africa, which include socioeconomic and political exclusion,10See James Gow, ’Funmi Olonisakin, and Dijxhoorn Ernst, Militancy and Violence in West Africa: Religion, Politics and Radicalisation (London: Routledge, 2013); and Anneli Botha, “Assessing the Vulnerability of Kenyan Youths to Radicalisation and Extremism,” ISS Paper 245 (Institute for Security Studies, April 2013). and would complicate reform efforts.
Lessons for Kenya
First, beyond the current reforms debate, Kenya needs a process for collectively envisioning a national security policy that would make security forces responsive to citizens and foster an environment of trust and, ultimately, safety. The constitution provides for broad-based citizen consultation; however, the predetermined nature of who is consulted, why, and how has limited robust conversations in the country on security sector reform and civil-military relations.
Second, security reforms in Kenya have focused on the police, but it is clear that other sectors need to be held accountable for their operational capabilities, state of preparedness, and adherence to the rule of law. With regard to the ongoing police reforms, the leadership needed to implement legislated changes has so far been lacking, and the institutional culture within the police remains resistant and unresponsive to a larger democratization effort.
Finally, Kenya’s parliamentary oversight committees have limited knowledge of the security sector they are required to supervise, and the lines of accountability limit the demands the committees can make on security institutions. As a result, only a small cabal of people and organizations understand the true state of affairs in Kenya’s security sector. Security literacy, especially for parliamentary staff, who constitute the institutional memory of Parliament, remains urgent. The state must invest in a broader oversight mechanism that goes beyond just the parliamentary committees, as part of a broader process of creating a security sector responsive to the nation and citizens it serves and protects.
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