The Private Security Law in Kenya

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​published on 18 October 2019 | reading time approx. 3 minutes

 

It can be argued that Kenya is a country that is overly prescriptive with legislation, resulting in numerous laws and regulatory institutions, often handling overlapping issues. An exception to this, however, is the Private Security Regulation Act (“the Act”) which came into force in 2016. With the appointment of Mr. Fazul Mahamed to head the Private Security Regulatory Authority (PSRA) in mid-2018, and with the passing of the Private Security (General) Regulations in 2019, it is only now that the law is being enforced in earnest.

 

 

The private security services sector was left unregulated for far too long in spite of it being critical to the country's national security. In addition, everyday practices that Kenyans take for granted were essentially occurring in a legal vacuum.

 

To begin with, private security work, especially guarding, is faced with the challenge of getting into personal rights especially the right to pri­vacy, human dignity and freedom from discrimination. Whereas most of us have been subjected to body or vehicle search and temporary confiscation of documents, were these actions legal? With the passage of the Act, a private security service provider manning a building or responsible for any property is now legally permitted to search a person on entry or exit of that building or property without a warrant. However, the search remains subject to approval by the person being searched, the regulations and the Constitution.

 

Similarly, the common practice of a person entering premises or property being required to identify themselves and in some cases have their identification document temporarily retained is only now being directly provided for in law. The identifi­cation document surrendered should be kept in safe custody and not be used for any other purpose save for identification.

 

The clarification about this power by the private security law is quite important in light of the current push to regulate the use of personal data. There is need to manage this power to ensure that it is not in conflict with the provisions of the current Data Protection Bill, 2018 (“the Bill”). The Bill bases the collec­tion of personal data on consent of the person required to give the information. All persons will have the right to object to the collec­tion and recording of their personal data. Therefore, PSRA should determine how the private security personnel can exercise this power without infringing on the citizens' right to privacy and the entitlements under the Bill should it become law.

 

In addition, we typi­cally expect private security providers to arrest any person who commits an offence within the premises under their watch. We also expect them to report any violation of a written law to the relevant state authority. Nevertheless, for a long time, there has been no legal mechanism in place to guide how these seemingly obvious actions should unfold. In arresting an offender, a licensed private security services provider will be exercising his or her citizen's right to arrest. The right to arrest shall be exercised responsi­bly and is not to infringe on any right or fundamental freedom of a person. Additio­nally, there is now a provision that the licensed private security services provider in his role as a witness is entitled to witness protection (where necessary) as well as to having their identity withheld so as to ensure their safety. The Act does not confer on the licensed private security services provider, the powers of a police officer or member of a disciplined ser­vice. It however allows for co-operation between private security services providers and the disciplined services. 

 

Another grey area has been that of the equipment used by private security providers. All equipment used by private security service providers is now subject to inspection by PSRA with the requirement that all equipment that needs calibration is calibrated at least once a year by an independent body. This is meant to ensure that the equipment is fit for purpose and that it remains safe for the users and the public from an occupational health and safety perspective. The target here is equipment that uses X-Rays and other technology that poses health and safety concerns for operators and the public.

 

The creation of a comprehensive regulatory framework for this sector was clearly long overdue. There is now an opportunity for business in this sector where industry players can focus on offering quality services and equip­ment at a premium.

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