President Uhuru Kenyatta and Raila Odinga launched the signature collection drive for BBI on Wednesday. The exercise seeks to rope in millions of supporters and trigger a referendum to amend parts of the Constitution.
It is worth noting that the current version of BBI is fundamentally different from the document that was launched in October this year. This means that indeed, certain considerations and suggestions were received, considered and ultimately adopted.
A fundamental issue that has been dropped is the proposal to abolish the National Police Service Commission (NPSC) and replace it with a Kenya Security Council (KSC) chaired by the Interior Cabinet Secretary, with the Principal Secretary, the Inspector General of Police (IG) and two senior police officers appointed by the president as members. This did not go down well with many because the KSC would hand the Executive total control of the NPS.
Kenya’s experience during the post-election violence of 2007 and other injustices highlighted in several commissions of inquiry, including the Judge Philip Waki, Johann Kriegler and Philip Alston reports on PEV, elections and police reforms insisted that the police should be functionally, financially and operationally independent of the Executive because of the danger of being used as political tools. They proposed that professional development, discipline, transfers, promotions, well-being and mental health be dealt with by a separate civilian body to remedy past mischief of tribalism, nepotism and corruption in recruitment; and a police force that is beholden to the regime, instead of the people.
I welcome that the NPSC has been maintained in the new referendum Bill. However, certain fundamental changes have been included in terms of the mandate and functions of the NPSC vis-a-vis the Inspector General of the National Police Service. The mandates of the NPSC, which is a civilian body meant to carry out human resource functions for the NPS, have been transferred to the IG. In essence, the IG shall now confirm appointments, determine promotions and transfers and exercise disciplinary control, including removing persons from the NPS.
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The Constitution 2010 sought to equip the IG to do his work but entrusted police officers’ human resources functions to the care of a civilian body. To ensure that serving police officers had a say, the constitution included the IG and his two deputies as members (commissioners) of the NSPC.
NPSC has been left with the function of recruitment of persons into the NPS and setting and reviewing ‘conditions of service’ and ‘code of conduct’ for the NPS. This means that after NPSC recruits, it ceases to have any say with regard to career progression, fair treatment of police officers and other human resources functions.
It is also curious that the amendments have given NPSC the mandate to set conditions of service, which is the core function of the Salaries and Remunerations Commission (SRC). Another pertinent question is: How do the drafters expect the NPSC to merely ‘set conditions of service’ and ‘code of conduct’ with no powers to implement on account that discipline powers have been moved to the IG?
Moreover, since there is no change to the membership of the commission and its core mandate has been fundamentally reduced, what will it be meeting about? What will it be discussing? In 2014, the National Assembly amended the law via the infamous Security Laws (Amendment) Act to remove the role of the NPSC in the recruitment of the IG, which included publishing the vacancy, shortlisting, interviewing and nominating. This rolled back the concept of independence of the IG and the NPS because the president could hire and fire the IG at will. The new proposals will further take us down the path of a police service rife with discrimination, corruption, tribalism and nepotism in recruitment, discipline and promotions.
The police service is the most visible manifestation and the embodiment of the civil authority of government. It is responsible for maintaining public order and safety, enforcing the law, protecting human rights and dignity, and preventing, detecting, and investigating criminal activities and enforcing court orders. Policing is a noble profession that deserves support and respect. Their welfare should be overseen by an institution instead of one person.
-Mr Kiprono Constitutional and Human Rights Lawyer [email protected]