The debate on the appointment of the two deputies of the Inspector General of Police and the head of CID is largely a product of the failure to read and understand the law.
To place this issue into proper context, a brief background is important. Upon promulgation of the Constitution the regular and administration police were merged under the general command of the Inspector General of the Kenya Police Service.
Section 11(2) of the National Police Service Act of 2011 provides for the appointment of two Deputy Inspectors General of the Kenya Police Service.
Section 23 and 26 create the positions of Deputy Inspector General for the Kenya Police Service and Deputy Inspector General for the Administration Police Service respectively with attendant powers and functions. Section 30 of the Act establishes the Directorate of Criminal Investigations headed by a director.
The position of the IG was filled, without controversy, after consultations between the coalition principals and with the approval of the National Assembly as required by section 29 (2) of the Sixth schedule of the Constitution.
Subsequently, President Kibaki on Friday January 25, 2013 appointed deputy inspectors-general and director of CID. These appointments have triggered controversy with the Prime Minister saying he was not consulted and raising unspecified integrity issues with regard to the appointees.
The Independent Police Oversight Authority has also objected to the appointment of Ndegwa Muhoro as the director of CID on alleged integrity issues. Both the Prime Minister’s and Ipoa’s objections are irrelevant and without any legal basis.
Section 13 of the National Police Service Act 2011 provides for the appointment of the Deputy Inspectors General by the President. Specifically, Section 13(5) provides that the National Police Service Commission shall recommend, to the President, persons to be appointed to the said positions.
The Commission did that and, in making the appointments to the said positions, the President acted on the basis of those recommendations. Significantly, the commission is the statutory body mandated to recruit persons for appointment within the rank and file of the Kenya Police and has come out to strongly defend the appointments.
On the issue of consultation, the Constitution clearly establishes the basis upon which the President must consult the Prime Minister. Section 29 (2) of the Sixth schedule of the Constitution states:
“Unless this Schedule prescribes otherwise, when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly.”
In the present appointments therefore, there is no requirement for parliamentary approval and consequently no legal obligation on the part of the President to consult the Prime Minister or any other person or authority over the appointments.
As the National Police Service Act of 2011 excludes parliamentary approval of the appointment of the two deputies, the appointments must be deemed proper in law. These appointments are critical especially as we approach the General Election.
Other than provide non-binding views like any other entity or individual to the Police Service Commission, Ipoa has no statutory role whatsoever in the recruitment and appointment of police officers. If Parliament ever intended to give the authority any powers or role in this process, nothing could have been easier than to state so in the law.
The attempt by the authority to obstruct the appointment of these senior police officers is illegal and a usurpation of the constitutional powers of the Police Service Commission and those of the President.
The Prime Minister’s objection should also be seen in the same light.
Ms Kerubo is an advocate of the High Court