Since the disappearance of the lawyer Kimani, taxi driver Muiruri and boda boda rider Mwenda, there have been numerous claims that Nkaissery, Cabinet Secretary for Internal Affairs, and Inspector-General Boinnet should be dismissed. Since the bodies of the victims were discovered four days ago, the call for their dismissal has intensified.
Various studies show that killings by the police are not unusual. Innocent people disappear and many are tortured. Most people are terrified of an encounter with the police, and prefer to bribe them rather than insist on their legal rights.
Many Kenyans regard their country as a police and military state, a legacy of colonialism. Kenya is now widely recognised as a haven of the impunity of state officials.
It is not my intention to discuss the brutality of and extortions by the police, but to discuss the legal or political grounds for the dismissal or resignation of the internal affairs cabinet secretary and the inspector-general.
Attempts to implement reforms in the administration and behaviour of the police are derided by Nkaissery, who shows scant respect for the Constitution, while Boinnet has failed to assert his constitutional role as the head of a critical, independent service and seems to acquiesce in instructions from the President.
In many democratic countries more ministers lose office by resignation than by dismissal.
Reasons for resignation include ill-health, retirement, disagreement with the government (fairly common), loss of support of the ruling party or the legislature, aspersions on integrity or competence, and major scandal in the ministry.
In many cases the minister is not directly responsible for negligence or incompetence, but takes responsibility for the failure in the ministry. In some cases the minister has resigned when accused of corruption or other offence, even though innocent. The decision is that of the minister, though the government leader or the party may have put some pressure.
Rarely, the legislature may pass a vote of no confidence—which is likely to lead to resignation.
The power to dismiss the minister usually lies with the president (in presidential systems) or the prime minister (in parliamentary systems). Instances where the head of government has dismissed the minister include moral turpitude, criminal act, or gross misjudgement, as well as political disagreement, although the power to dismiss is not limited to any specific grounds.
Kenya system
Because of the nature of our politics (including the orientation towards personal aggrandisement), there are few instances of resignation of cabinet secretaries (CSs) (or, in the past, ministers).
There have been very few sackings in Kenyan history, again because of the nature of our politics—devoid of policies, coalition executives, and the ethnic clout of ministers. The President may dismiss them without having any reason.
The President’s scope for manoeuvre is greater under the 2010 Constitution because relatively few cabinet secretaries have strong political support—Uhuru has already sacked several.
On the other hand, the National Assembly has greater power to remove a CS than before. It can ask for the removal of a CS for gross violation of the Constitution or law, a criminal offence under national or international law, or gross misconduct.
A select committee of the Assembly must examine the evidence, and if the National Assembly finds that there are sufficient grounds for dismissal, the President must dismiss the CS. A CS could also be investigated under other procedures, such as that of the anti-corruption authority.
The grounds for removal of the Inspector-General are set out in the Constitution. but the procedure in legislation. The 2011 National Police Service Act provided a fair process but this was removed by the 2014 Act which largely gave authority to remove to the President.
The constitutional grounds for removal are broader than for removal of CSs by the National Assembly. Most involve clearly serious misbehaviour, but there is also one worrying and vague ground: “any other just cause”. This must be read as meaning something as serious as the specific reason listed, and should not be used by the President to dismiss an IG on political grounds, as he can dismiss a CS.
Sasa?
There is ample reason for both these gentlemen to resign, or be dismissed. Both have violated the Constitution: one by grossly exceeding his limited authority over the I-G, and the I-G for obeying those unconstitutional directions. Additionally, both should accept have taken place responsibility for the horrendous violations that have occurred.
The people, as such, despite their sovereignty proclaimed in the Constitution, have no scope for initiating the process of removal of either officer. One can safely assume that Uhuru will remove neither.
So the matter will be resolved, if at all, by resignation. It is unlikely that Nkaissery would be moved by either the pleas or the anger of the people. Boinnet has already given a lengthy explanation of how neither he nor his staff is responsible for what happened.
Yet the resignation of one or both of them would have positive impact on our political culture and morality—in the case of the I-G showing the courage to take responsibility for the horrible crime of members of staff for whose conduct he accepts responsibility and in the case of Nkaissery an acknowledgment that his war-like attitude does the country no good.
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