Process of appointing Inspector-General of Police illegal

By Okiya Omtatah

Even as some civil society organisations question the integrity and suitability of those the National Police Service Commission (NPSC) has shortlisted for appointment to the important positions of Inspector-General of Police (IGP) and the two deputies, it is emerging the entire exercise has been carried out in total disregard of the law, and is therefore null and void.

According to Section 9 of the National Police Service Act, “The Inspector-General, the Deputy Inspector-General in charge of Kenya Police Service and the Deputy Inspector-General in charge of Administration Police Service, shall be appointed to office in accordance with Article 245 of the Constitution and sections 12 and 13 of this Act.”

Among others, Article 245 of the Constitution establishes the independent office of the IGP and the two deputies, and establishes the basic appointment process empowering the President to make the appointments to the offices with the approval of Parliament.

Sections 12 and 13 of the Act respectively empower the NPSC to fill vacancies that arise in the office of the Inspector-General and the two deputies, and sets out an elaborate procedure of doing so.

However, Section 12(12) states categorically that, for purposes of appointment of an Inspector-General and the Deputy Inspector-General before the establishment of the Commission, the procedure set out in the Third Schedule shall apply.

The same is repeated in Section 13(7) in respect only to the Deputy Inspector-General. Irrespective of whether or not the NPSC is in place, the Third Schedule requires the appointment of the first IGP and the two deputies to be conducted by a panel comprising one person from each of the following bodies respectively: the Office of the President, the Office of the Prime Minister, the Judicial Service Commission, the Commission for the time being responsible for matters relating anti-corruption.

The President was supposed to constitute the panel within 14 days after August 30, 2011, when the Act came into force. The fact that the President did not constitute the selection panel within the 14 days does not oust the requirement that the first IGP and the two deputies are by law supposed to be selected by a special panel. It is only after the first appointments that the NPSC will subsequently fill vacancies that arise in these positions under sections 9, 12 and 13 of the National Police Service Act. Clearly, this transitional requirement barring the NPSC from appointing the first Inspector-General and the two deputies was designed to ensure the autonomy of the new police command from the Commission. That way, because the selection panel would be dissolved soon after the appointments, the appointees would have the free hand to set standards for the new office. Hence, the Act sought to provide for the desire of Kenyans to establish an independent office of IGP as enshrined in Article 245 of the Constitution.

Another illegality in the recruitment was committed in the advertisements the NPSC placed on Page 11 of The Standard on Monday, October 15, inviting applications for the post of Deputy Inspector General of Police. By stating that candidates must be degree holders, the NPSC illegally but intentionally locked out the many long serving police officers who do not hold degrees from participating in the recruitment yet they were qualified under the Act and should have been allowed to compete for the post. Whereas Section 2(b) of the Act states clearly that, “A person is qualified for appointment as Deputy Inspector-General if the person holds a degree from a university recognised in Kenya or equivalent qualifications,” the NPSC irregularly amended the Act in their advertisement by omitting the words “or equivalent qualifications.”

Lack of a university degree was not meant to be a dead end for the huge pool of talent within the police force. The Act sought to give a fair chance to non degree holders who have excelled as police officers, and who have undertaken numerous police work related courses over several years, to compete for the all-important position.

If these weighty issues are petitioned in the High Court, the recruitment is likely to be declared unlawful and the resulting appointments a nullity. Hence, the NPSC is best advised to cancel the ongoing process and repeat the recruitment in fidelity with the law.