Kenya's Police Oversight Authority rubbishes Kimaiyo's ban

The Independent Police Oversight Authority (IPOA) has critisized recent impounding o private vehicles with tinted windows terming it completely erroneous and irregular.

The authority has also called upon the public to report such incidences of unlawful harassment, arrest, intimidation and demands for bribes by police, to their offices. Additionally those affected by the irregular and illegal impounds of motor-vehicles have been urged to report the incidences to IPOA offices for required action.

In a statement dated 16th May, the Chairman of the Independent Police Oversight Authority questions the order by David Kimaiyo who still holds his ground that his erroneous order applies to both public service and private vehicles.

A statement from the Authority's chairman Macharia Njeru dated May 16 questioned the directive from Inspector-General of Police David Kimaiyo, who has insisted the ban on tinted windows applied to both private and public service vehicles.

On Thursday, the police boss said the ban applies to all vehicles driven on Kenyan roads regardless of who owns them or what they are used for.

“This is the law and it must be obeyed by everyone. It does not matter whose car it is. Even foreigners driving into the country must remove the tint from their vehicle windows if it is to be driven on Kenyan roads,” Mr Kimaiyo has been reported as saying, in clear violation of the Traffic Amendment Rules 2009.

"Rule 54 A (1) of the Traffic (Amendment) Rules 2009 provides as follows: 'A person shall not drive or operate a public service vehicle that is fitted with tinted windows or tinted windscreen.' As can be seen from the foregoing, this section of the law clearly specifies public service vehicles as the ones prohibited from use of tinted windows or tinted windscreens.

"It is therefore completely erroneous and irregular for the police to impound private motor vehicles on the purport that they have tinted windows," read the statement.

"Indeed a public service vehicle is defined under Section 2 of the Traffic Act (Cap 403) to mean any motor vehicles which: is licensed under part XI to carry passenger for hire or reward; or plies for hire or reward or is let out for hire or reward; or is carrying passengers for hire or reward.

"The Authority wishes to reiterate that any directive which is not in compliance with the spirit and letter of the law amounts to an unlawful order. Section 51 (2) of the National Police Service Act clearly stipulates that police officers are not required to comply with unlawful orders.

"Consequently, there is no requirement for police officers to comply with the directives attributed to the Inspector-General of Police."

The statement also said that the manner in which the directive was issued and its implementation by the police did not meet constitutional or professional thresholds, adding that the only way to handle crime and terror was through the rule of law.

"Such an abrupt and unclear operation only perpetuates the image of the police service as untrustworthy and perpetuates corruption as members of the public are forced to part with bribes to avoid being arrested or detained in unclear circumstances by the police," it read.

"The rule of law primarily requires that all laws being implemented be clear both to the members of the public and the law enforcers. Where instructions to the police are vague and not backed by any law as in the present circumstances, the same is prone to abuse as has been experienced and reported by the public...

"Ultimately, IPOA would wish to encourage members of the public to report any incidents of such unlawful harassment, intimidation, demands for bribes and impounding of motor vehicles with tinted windows to its offices for action.

"The public should however be properly advised of the requirement of Rule 30 (1) of the said Regulations which prohibits the use of any material which has, or is capable of having reflective properties."

Yesterday, Law Society of Kenya offered to defend a those whose private vehicles were impounded courtesy of Kimaiyo's illegal order.

“A very dangerous culture is creeping in our institutions where persons holding public office disregard the law and make illegal public pronouncements. This is an affront to the constitution and must be arrested forthwith.” LSK chairman Eric Mutua said.