By Ndung’u Wainaina
Open letter to David Kimaiyo, Inspector General of the National Police Service of Kenya
Dear Inspector General of Police, David Kimaiyo
Re: No Powers to transfer and or promote Police officers
The above subject refers.
I have stated in the past that the process of removing you from office is long overdue. I reiterate it today.
It is emerging that on Thursday March 20, 2014 you effected changes in the National Police Service unconstitutionally and unprocedurally.
High Court of Kenya on January 2014 interpreted and reasserted the constitutional position on this matter.
Hereby below are excerpts from the court ruling.
The High Court acknowledged that under Article 245 of the Constitution, the Inspector General of Police is empowered to exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.
However, Article 246 sets out the National Police Service Commission (NPSC) and gives it powers to recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service.
It also empowers the commission to exercise disciplinary control over officers and remove persons holding or acting in offices within the service.
The Court observed, “It is, therefore, clear that the powers to determine promotions and transfers within the National Police Service was given to the commission and any legislation, which purported to take away such powers and place them on any other body would have been inconsistent with the Constitution since to create two centres with the same powers was bound to cause confusion in the administration of the police service.
The court added, “Kenyans must have had a good reason for removing the powers of transfer of the members of the service from the predecessor of the Inspector General, the Commissioner of Police, to the commission.
Since the Inspector General is a member of the commission, it is expected that where a need for transfer of the members of the police service arises, he would be able to explain this position and the commission would be able to take appropriate steps.”
Court concludes, “Reading Article 245 of the Constitution, it is clear that the drafters of the Constitution deliberately left out transfer as one of the powers, which the Inspector General exercises without directions from any one. Therefore, the powers of transfer of members of the service were reserved to the commission. It would appear that there is a difference between members of the service and offices of the service and their source of appointments are also separate”.
The Court concluded that there was no power given to the Inspector General to transfer the 30 officers hence the move, whether termed as deployment or otherwise, was not supported by the supreme law of the land.The only powers, which the Inspector General could exercise, were the powers to assign the members of the service particular duties.
The Court declared your action as “above the legal authority of the Inspector General and declared it null and void”.
If you are citing rising on insecurity to conduct unconstitutional functions, the court had this to say, “In the court’s view, the alleged reports and complaints of malpractices and corruption by the Kenya Highway Authority cannot be resolved by transfer and deployment”.
It added, “To transfer police officers who are suspected of corruption in my( court) view only amounts to devolving corruption and malpractices and cannot be said to amount to an effort to eliminate corruption. This country has adequate machinery to deal with such malpractices and corruption and transfer and deployment do not form part of them. Where there is evidence of malpractice or corruption, appropriate legal action ought to be taken against the culprits other than transferring them to other areas.”
The court had a free advice to you thus, “It’s important that the Inspector General of Police and the commissioners of the National Police Service Commission work together for the well being of this nation. They must remember that under Article 129(2) of the Constitution, executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.
If the two offices do not exercise their authority in a manner compatible with the principle of service to the people of Kenya and for their well-being and benefit, they would be going contrary to the principles of the Constitution.
It is, therefore, hoped that sobriety will prevail between the said authorities and they will avoid political expediency, popularity gimmicks, chest-thumping or competitive streaks that this country has been treated to in recent past.”
Based on this Court ruling and provision of the Constitution, show cause why procedure of your removal as provided in the Constitution cannot proceed. You disregarded Court ruling. Recall what Chief Justice Dr. Willy Mutunga told you during your swearing in to the office.
Mr Wainaina is the Executive Director of International Centre for Policy and Conflict, ICPC-K.