This article was first published in the Daily Nation….
Mr Waiganjo is an advocate of the High Court and legal officer at IPOA.
All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution …” This declaration found at Article 1(1) of the Constitution of Kenya 2010 has aptly underscored the protests witnessed across the nation against President William Ruto’s administration for the past two months.
The protests were largely propelled by a section of the country’s youth now commonly referred to as Gen Z. “Sovereign”, according to the Merriam-Webster dictionary, means ultimate, absolute and unrestrained.
Sovereign power, therefore, means ultimate, unrestrained or absolute power. This sovereign power, as delineated by our Constitution, by application, extends to exercise of policing powers. In the wake of the heavy-handed response by the police to protesters, and noticeable cabals of goons camouflaged as peaceful protesters, and the resultant public outcry, Inspector-General of Police Japhet Koome tendered his resignation on July 12.
In the eyes of many, he had stubbornly refused to publicly acknowledge that many police officers under his command had become rouge and were operating extra-legally.
Donated their sovereign power This move by the IG of police echoed the spirit of Article 1 and Chapter 6 of the constitution—the country’s top cop and the bearer of the ultimate responsibility of police misconduct and unprofessionalism, cannot operate without the public’s goodwill.
Phrased another way, the IG may serve at the pleasure of the President, but he or she works for the public, who have donated their sovereign power to the office holder.
Therefore, an argument can be advanced that since the IG exercises the people’s sovereign power, he or she should be chosen from among the people who hold that power.
He or she should invariably and without exception, be a civilian. As provided under Section 84A of the National Police Service (NPS) Act, the IG is responsible for all matters relating to the command and discipline of the service, subject to the disciplinary control of the National Police Service Commission (NPSC).
The IG exercises command over the NPS and manages it as a disciplined Service. The IG is therefore in charge of the entire service. When it comes to recruitment of the IG and deputy IGs, an important distinction lies in the qualifications for the two positions as laid down in the law.
According to Section 11(1) of the NPS Act, the IG need not have served as a police officer. For the deputy IG however, Section 11(2) (e), (f) of the Act requires such an individual to have served in the service for at least 15 years and to be equal to or above the rank of assistant IG.
This was not a legislative accident by our lawmakers, but a deliberate intention to introduce a paradigm shift in the police leadership structure, to allow a civilian to lead the service. A ringing endorsement of our current constitutional order that expressly vests sovereign power upon the people.
The country appeared to have curiously taken a step back in the IG recruitment process by clawing back the more transformative provisions that were in place after enactment of the NPS Act.
Initially, Section 12 of the NPS Act mandated the NPSC to competitively advertise, shortlist, interview and recruit the IG following parliamentary vetting. The 2014 Security Laws Amendment Act altered this process, giving the President sole authority to nominate the IG for parliamentary vetting, thereby completely bypassing the NPSC.
Competitive recruitment It should be noted that the task force on police welfare and reforms led by former Chief Justice David Maraga recommended the reinstatement of the competitive recruitment of the IG, directors of internal affairs and criminal investigations, and deputy IGs.
This proposal would be a positive step in regaining the much-needed integrity and transparency in the recruitment of the IG, that was lost through the passage of the 2014 Security Laws Amendment Act.
Perhaps more penetrative changes to the law and appointment processes are needed to further protect the integrity of the appointments.
In view of the prevailing challenges related to the public perception of the service, recruitment of the IG should be done competitively; the position to be openly advertised by the NPSC. Names of all applicants, shortlisted and not shortlisted, to be published in at least two newspapers of nationwide circulation.
Also, the recruitment and selection panels to include representatives from non-partisan State and non-State actors comprising at least two religious groups, civil society, Law Society of Kenya and the Independent Policing Oversight Authority, who would cumulatively form the majority of the panel so constituted.
To further entrench the proposed changes to the recruitment approach, an express provision in Section 11(2) of the NPS Act should be introduced, stipulating that the appointee to the position of IG must not have served or have been employed in the service at any given time.
Lastly, the successful candidate should demonstrate an understanding of fundamental human rights or a track record of observance of the same.
The police as a service must begin to ultimately answer to a civilian, an emblem of the people who hold sovereign power.
After the progressive police reforms put in place after the promulgation of the 2010 Constitution, perhaps the time is ripe for the country to take a further decisive step to finally have a police service of, by and for the people.
A police service that lives up to its time honoured creed, Utumishi kwa wote.
Mr Waiganjo is an advocate of the High Court and legal officer at IPOA. Email: gwaiganjo91@gmail. com; @Baba_Koi.