Insight

Unclear Laws On Operations Of County Askaris

The County askaris are mandated by county laws to implement their bylaws and arrest those who break them. On the contrary, the same officers have been accused of overstepping their mandate and violating human rights. A recent ruling by a Mombasa Resident Magistrate questions the powers that they wield.

Moses Wafula, a trader in Bungoma town previously worked as a hawker in Nairobi city. He says, he was attacked by a group of county askaris who beat him up and fractured both his arms.

Wafula lost his entire stock of second hand shoes and clothes. He had to return to Bungoma where he sells mangoes on a wheel barrow.

“My life took a drastic change because I couldn’t afford treatment and my livelihood was gone. Even worse is I couldn’t demand for compensation,” said Wafula.

His story is shared by many Kenyans who have suffered in the hands of county askaris.

County governments in Kenya have a special cadre of officers. They are responsible for ensuring compliance with and the enforcement of county laws and regulations.

They go by different titles among them County Enforcement Officers, County Inspectorate Officers, County Askaris and Kanjo.

The promulgation of the new constitution in 2010 gave birth to county governments. They inherited the Askaris who previously worked under the now defunct local authorities.

The askaris have immense powers when it comes to enforcement of county laws and collection of taxes. They impound cars, confiscate goods from traders and hawkers, arrest defaulters of county taxes and penalties. They can also arrest and detain offenders.

Violation of human rights

“They are a feared force especially by business people. They, in most cases discharge their mandates ruthlessly with disregard to the law and human right,” added Wafula.

On October 31, 2017, seven Nairobi county askaris were arraigned in court for robbery with violence. In one of the charges, the askaris were accused of robbing a hawker. They Benson Githinji, tak KSh 150 from him and vests worth Ksh 20,000 in Eastleigh neigbourhood.

Four askaris who were allegedly armed with machetes, and metal bars were also accused of stealing 14 pairs of bed sheets.

A ruling by Mombasa Resident Magistrate Ritah Awayi in November 2020, has sent policy makers back to the drawing board. The magistrate, in a matter which involved a Kenya Women Finance Trust (KWFT) employee, ruled that the county askaris have no powers to arrest law breakers.

“The arrest and prosecution of offenders by the County Government of Mombasa enforcement officers has no legal backing, as there exists no Act or Statute which confers them such powers,” Ritah Awayi stated.

There is no uniform curriculum for training of the County askaris. Most of them hardly undergo any training besides the minimum secondary school education requirement and being physically and mentally fit.

Where do they draw their powers from?

According to Article 176 of the Constitution of Kenya 2010, county governments are relatively autonomous entities from the national government with both legislative and executive powers and functions.

The county assemblies have the powers to legislate for the counties while the county executive committees implement county legislation.

Enforcement of county laws is a function of county executive committees and they are required to cooperate with the police, judiciary, independent commissions like Kenya National Human Rights Commission (KHRC) and other organs of the national government.

County assemblies have bylaws which clearly states offences and their punishments. For instance, failure to pay land rates, not having a valid permit, failure to pay parking fees, and failure to have a trade license for businesses are offenses that are punishable.

Legal backing for enforcement officers

The Constitution of Kenya, 2010 and the County Governments Act, 2012 have mandated county assemblies to enact laws for effective performance and exercise of the functions and powers assigned to counties.

Read our previous article on The Strange Nairobi County Bylaws.

Some of the forty-seven counties have enacted county laws that provide for the establishment, organization, powers and functions of county askaris. Their conduct within the county governments is regulated by these laws.

The objectives of the county laws are to provide for a legislative and institutional framework for the enforcement of county laws. In addition, the laws regulate the operations of county askaris.

According to Articles 6(2) and 189 of the 2010 Constitution, the county askaris offer secondary support to services that are primarily the responsibility of the national government. Among the functions is county traffic control and security.

Some counties like Mombasa, Nairobi and Nakuru have enacted laws that regulate the operations of their askaris. County assemblies are supposed to enact county legislation providing both the legal and institutional frameworks for the enforcement of the county laws and regulations.

The proposed legislation should enable departments or units of counties’ public service and provide for their organization, functions and powers.

Other counties have not enacted county laws for the same purpose. Instead, their respective County Public Service Boards have directly employed enforcement officers to ensure compliance and deal with offenders.

The askaris in these counties work under the Department of Devolution, Public Service and Disaster Management.

The Nairobi City County Assembly through the enactment of The Nairobi City County Inspectorate Service Act 2017 established several units of inspectorate including the inspection, fire and emergency services, disaster and rescue services and traffic units. The Act also establishes the ranks of officers in the Inspectorate.

Other counties have organized their askaris differently. Mombasa for instance has an inspectorate department that consists of well-trained security teams including firefighters. The County also has ever present and agile traffic marshals who work hand in hand with the traffic police.

However, some counties such as Bungoma, Kilifi, Tana River, Uasin Gishu, Kakamega, Kwale, Embu, Bomet, Embu and Tharaka Nithi among others do not have inspectorate units.

Instead, they have askaris whose responsibilities include: enforcement of and compliance with county laws and regulations; patrol and guarding of access points; controlling crowds; protection of county government property; and providing market security.

Pending Senate’s bill

The senate is equally supposed to enact a national law that provides for a legislative framework for the appointment, functions and a uniform code of conduct for the county askaris.

The closest the senate has come to this is through The County Law Compliance and Enforcement Bill, 2018 that was sponsored by Vihiga county Senator George Khaniri dated August 15, 2018.

The Bill seeks to establish enforcement units whose function is to ensure compliance with the laws enacted pursuant to Article 185 of the 2010 Constitution and Part II of the Fourth Schedule to the Constitution. The Bill is currently before the Senate.

What journalists should do:

  1. Check in your respective counties to confirm if the laws that anchor and regulate operations of County askaris have been enacted.
  1. Find out the roles assigned to county askaris and their reporting structures.
  1. Report on human rights violations caused by county askaris.
  1. Follow up on the fines imposed by county governments and how their payment is enforced.

5.Check our LIST OF EXPERTS for this and other topics.

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