President Uhuru Kenyatta has now acquired new powers to hire and fire top police chiefs, a significant move in what appears to be a systematic attempt by the Executive to tighten its grip on independent institutions through legal changes.
This comes after changes to the Judicial Service Act that appear to have given the President a bigger say in the appointment of the next Chief Justice and Deputy Chief Justice. CJ Willy Mutunga and his Deputy Kalpana Rawal are expected to retire this year. However, Ms Rawal has challenged her retirement at the age of 70 in court.
Last week, the Sunday Nation exclusively reported that unlike in 2011 when the Judicial Service Commission (JSC) presented the President with only one name, the Judicial Service Act has been amended at Section 30 requiring that three names be forwarded to the President.
In the security sector, the President now has control over the two Deputy Inspectors-General of Police and the Director of Criminal Investigations (DCI) after the National Assembly made changes to the Miscellaneous Amendments Act last month.
The Act repeals the National Police Service Act 2011 at section 13 by removing the role of Parliament.
Instead, the President shall, on recommendation of the National Police Service Commission (NPSC), appoint the Deputy Inspector-General of Police within 14 days of a vacancy occurring. However, NPSC has itself been reduced to a shell through several laws dealing with security passed since 2013.
BEFERT OF QUORUM
Bereft of a quorum following failure to replace departed commissioners and with legislation having stripped them of many of their powers, NPSC has been reduced to a rubberstamp of presidential decisions on matters of promotions, transfers and disciplining members of the police service.
Neither the Attorney-General Githu Muigai nor the Solicitor-General Njee Muturi responded to the Sunday Nation queries about the controversial provisions of the Miscellaneous Amendment Act. But President Kenyatta, in his New Year’s eve speech, promised more changes to the security laws.
“In a bid to confront and deal with insecurity, we commenced 2015 with the passage of security laws that were absolutely necessary in supporting our security apparatus to combat crime and terrorism. As we look back, we are proud and confident of the actions we took because, today, even our critics would agree, we are generally enjoying better security in our country. The improvement in security that we witness today has not only restored the confidence of Kenyans but also boosted their ability to go about their businesses unhindered. In 2016, we will endeavour to make Kenya even more safer for all Kenyans and our visitors. My Government will continue to reach out to all communities to strengthen national cohesion and unity,” the President said.
In addition, the Miscellaneous Amendments Act now means that the three top police jobs can be held by people of the same gender after section 14 (b) that was explicit on the two-third gender rule was deleted.
According to the Chairperson of the National Gender and Equality Commission Winfred Lichuma, Parliament passed the law with the commission’s objections on record.
“The miscellaneous laws is where a lot of things are sneaked in and in this, it appears that the men have decided that there are some jobs women cannot do, which is very unfortunate,” said Mrs Lichuma.
The new Section 17 of the National Police Service Act provides that the President “may remove, retire or deploy a Deputy Inspector-General at any time before the Deputy Inspector-General attains the age of retirement.”
In 2014, the law was changed to allow the President to nominate the Inspector-General of Police.
That led to the appointment of National Intelligence Service officer Joseph Boinnet last year, after vetting by the National Assembly, following the resignation of David Kimaiyo. The Jubilee Government has previously explained that the amendments were meant to make it easier to deal with security threats, especially terrorism.
The 2010 Constitution put emphasis on security sector reforms and the independence of the police force, which was renamed the National Police Service, to avoid interference in its work by politicians and other influential individuals. But the changing of the law to have the three most senior officers under the mercy of the Executive is likely to wipe the gains made.
In addition, the Deputy Inspector-General’s term has also been removed as is Section 18(3) that provided that: “Where the term of office specified under subsection (2) ends before the retirement period, the Deputy Inspector-General may be redeployed to the public service.”
The radical amendments to the National Police Service Act may have been prompted by the standoff that occurred when Deputy Inspector-General of Police Grace Kaindi resisted attempts to remove her from office after State House announced her retirement. Mrs Kaindi moved to court to contest her removal before the end of her term, and the appointment of Joel Kitili as an acting Deputy Inspector-General.
In the documents she filed in court, Mrs Kaindi claimed that a Deputy Inspector-General cannot be fired without following due process.
“This honourable court has the duty to defend and protect the Constitution of Kenya, which is being violated by the Executive arm of Government,” Ms Kaindi said in court papers filed last year. “In effecting the transfer, the President is seizing the powers of National Police Service Commission.”
The Law Society of Kenya (LSK) council member James Mwamu said the changes that give President Kenyatta power to appoint the next Chief Justice and the Deputy Chief Justice is a continuation of the trend by the Jubilee administration to erode the independence of constitutional commissions and independent offices.
“Anybody familiar with our history knows how the 1963 Constitution was mutilated through piecemeal amendments by statutes, declarations which were later ratified by Parliament. We can’t allow this Constitution to be taken through that route,” said Mr Mwamu.
According to Mr Mwamu, these retrogressive amendments to the law are sneaked in without public participation just before MPs go on a recess. He also cited the controversial Security Laws (Amendment) Act that was acrimoniously passed in December 2014 during a chaotic session in the National Assembly, before some sections were thrown out after being challenged in court. LSK has promised to go to court over the matter (see separate story). The systematic targeting of the police follows laws perceived to be stifling the independence of the Auditor-General’s office, the Ethics and Anti-Corruption Commission, and the National Land Commission.
At the same time, the changes in the appointment of the CJ that allow the President to submit one of the three names to the National Assembly have elicited strong reaction.
Lawyer Ahmednasir Abdullahi said the amendment is not only retrogressive but also against the Constitution. The appointment of the CJ and the DCJ is safeguarded in the Constitution and changing the procedure would require a constitutional amendment.
“I have now confirmed ... the JSC Act has been amended (and) the next CJ will be appointed by HE (His Excellency) Uhuru. Blatantly unconstitutional. Must be stopped,” the former JSC commissioner said on a social media post.
According to Mr Mwamu, if the constitution wanted the Judicial Service Commission to submit more than one name, it would have expressly said so.
“An Act of Parliament cannot tell JSC how to recommend when the Constitution has given them power to do so,” said Mr Mwamu.
The timing, he said, was also suspect. The changes come as 2016 heralds change of guard at the Judiciary, including the JSC. LSK will hold elections in February to either reconfirm or replace one if its representatives Florence Mwangangi. Supreme Court will also be replacing Dr Smokin Wanjala as a member of JSC in June 2016. Last year, President Kenyatta’s nomination of Ms Winnie Guchu and Mr Kipngetich arap Korir to represent the public in the JSC was also seen as an attempt to control the commission.
The systematic erosion of the powers of the independent commissions and offices has also seen the government pass the Public Audit Act which clips the Auditor-General’s powers.
By virtue of the Act, Auditor-General Edward Ouko now lacks the powers to hire, promote and fire staff without consulting the Public Service Commission (PSC). In addition, the Auditor-General also lost the power to negotiate his office’s budget directly with Parliament.