Three radical and systematic amendments to a critical police law have given President Uhuru Kenyatta a stranglehold over the police, including sweeping powers that triggered the latest shakeup in the service.
The changes to the law that started soon after Jubilee rode to power have clipped the powers of the National Police Service Commission (NPSC) and turned it into a rubber stamp of the Executive.
Critics have said the President's unchecked discretion to hire and fire police chiefs effectively makes appointees Executive puppets and opens the doors to manipulation.
“The Constitution intended that the police should be independent of the Executive. The same Constitution intended that the National Police Service Commission, just like the Judicial Service Commission in respect of the Judiciary, will have an absolute say on those who are appointed to head the police,” former Ombudsman chairman Otiende Amollo told the Star.
On January 5, Uhuru sacked Deputy Inspector General of Police Joel Kitili, his Administration Police counterpart Samuel Arachi and DCI boss Ndegwa Muhoro.
On an acting capacity, he appointed Edward Njoroge to replace Kitili, Noor Gabow to take over from Arachi and George Kinoti to succeed Muhoro.
The NPSC, led by its Chairman Johnston Kavuludi, have kicked off the recruitment of substantive officers and the deadline for applications ends today.
However, the changes have triggered protests, with Opposition chief Raila Odinga claiming Uhuru is acting with impunity in the belief that he will never have to face Kenyans again in an election.
Raila’s co-principal Moses Wetangu’la also said Uhuru was blatantly violating the law by taking over the powers of independent institutions.
“The trend Kenyatta is embarking on, other than going against the spirit of the Constitution, means there no longer exist any fair chances for all Kenyans to access high constitutional offices because the appointment procedure is getting personalised,” Raila protested last week.
In 2009, the Justice Philip Ransley-led taskforce on police reforms concluded that appointment of police bosses by the President make them vulnerable to both political and hierarchical misuse.
Rights activist Cyprian Nyamwamu said that the NPSC cannot be described as a Constitutional Commission and decried that Kenya was headed to becoming a full-fledged police state.
“Very difficult moments in terms of police accountability here in Kenya,” he told the Star on the phone.
Adulahi Boru of Amnesty International said Kenyans must not forget the historical rationale for the elaborate oversight mechanism that is provided in the Constitution.
Citing the Waki Commission Report, Boru said it concluded that at least 30 per cent of people who died during the 2007/2008 post-election violence were killed by the police.
The NPSC also come under fire, with some stakeholders claiming, “They have abandoned their independence and allowed the President to usurp their powers.”
Yesterday, Otiende described most of the existing independent Commissions as “dead and moribund”.
“Commissions are supposed to protect the sovereignty of the people, they are supposed to protect democracy and constitutionalism, individually and collectively. What that means is that every individual commission should jealously guard its independence as granted by the Constitution,” Otiende, now the Rarieda MP, told the Star.
“A commission that allows the President to usurp its powers, keeps quiet about it and then purports to certify that by a cosmetic advertisement for a position, to which the President has already appointed somebody, is not a commission worth talking about.”
In what is seen as a mere formality, the Kavuludi team on Thursday advertised the three positions and is set to embark on a recruitment process.
However, there is public skepticism, going by past public experience.
In 2016, Kitili, was confirmed as deputy IG, following his appointment in an acting capacity by President Kenyatta.
The NPSC interviews were conducted in camera, away from public scrutiny, with the commission terming the exercise as an in-house affair.
Speaking to the Star, Kavuludi said the amendments that are said to have weakened his commission must have been found necessary.
He said his job as the NPSC chairman is to obey the law in appointment of the police bosses.
“My job as the chairman of the NPSC is to cope with the law to undertake the process of ensuring we go through the due process of appointing substantive office holders,” he told the Star.
Former chairman of the Committee of Experts on the constitutional review Nzamba Kitonga however said the amendments to The Police Service Act were legal because they were upheld by the High Court.
The first major amendments to the National Police Service Act were made in 2014.
The changes revoked a four-year tenure for the Inspector General of Police and allowed the Head of State to nominate the IG without reference to the Commission.
Despite protests from opposition MPs, Jubilee lawmakers gave Uhuru the powers to unilaterally appoint the IG, with the only requirement being approval by Parliament.
Through The Statute Law (Miscellaneous Amendments) Bill, 2015, Jubilee did away with elaborate statutory procedures and requirements for recruiting and dismissing both Deputy IGs and the Director of the Directorate of Criminal Investigations.
According to the initial law, whenever a vacancy occurs in the office of the deputy IG, the Commission conducts public interviews, vets and shortlists at least three persons qualified for the position.
The names of the persons shortlisted were to be published in the Kenya Gazette before being forwarded to the President for appointment.
The section was repealed and replaced with this provision: “Whenever there a vacancy arises in the Office of the Deputy Inspector-General the President shall on the recommendation of the Commission within fourteen days from the date the vacancy arises appoint a suitably qualified person to serve as Deputy Inspector-General.”
Removal of the IG, his two deputies and the CID boss was also elaborate and could only be enforced by the NPSC through a petition to the Commission.
However, this was removed, with the President given the powers to remove, retire or redeploy the police chiefs at any time.
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