The ongoing tussle between the Inspector General of Police and the National Police Service Commission chairman is unfortunate and must be resolved in a dignified manner.
While some Kenyans think the tussle is an ego contest between the two gentlemen, the issue is deeper and has been bubbling since enactment of the 2010 Constitution.
Many have forgotten the contestations between the first Commission chair Johnstone Kavaludi and the inaugural Inspector General David Kimaiyo.
Their altercations were just as vociferous though they were managed in a more decorous manner. For those not familiar with the origin of the contest, it arises from two latently conflicting articles of the Constitution. Article 245 which creates the office of the Inspector General gives that office ‘independent command of the police service’. On the other hand, Article 246 which establishes the Commission, grants it the function of recruiting, appointing, dismissing and promoting members of the police service and more critically exercising disciplinary control over them.
While these may look innocuous provisions, their practical application raises fundamental challenges on operations of the police service. The police service is a command institution. Across its operational structures, it requires those in authority to exercise untrammeled command of those below them within the rules of the service.
Central to the exercise of that command is ability to discipline, demote, promote, or dismiss. Unfortunately, while the Constitution gives “independent command” to the IG, it takes with the other hand capacity to exercise that independent command particularly by giving disciplinary powers to the Commission, an external institution.
Granted, the Inspector General sits in the Commission, but he is only one of many members and has no veto power over the Commission’s decisions. This arrangement is untenable and can cause serious operational problems within the police service and be a threat to national security.
To facilitate a resolution of the matter, the Inspector General and the Commission must first acknowledge that both institutions legitimately exist and are necessary for the better functioning of our police service framework.
Secondly, they must recognise that the answer to their challenges is not an obtuse interpretation of the law, even where the interpretation leads to ridiculous and impractical results. In previous negotiations on the matter during the life of the Commission for the Implementation of the Constitution, proposals had been given to facilitate a harmonious coexistence and functioning of the two institutions.
It was, for example, proposed that the Commission would prescribe the rules and mechanisms for disciplinary control but leave the Inspector General to apply the rules on a day-to-day basis.
The Commission could also act as an appeal organ especially for higher cadre of officers who felt unfairly disciplined. It was also proposed that the Commission would oversee recruitment of officers, while on promotions, the Commission would be restricted to prescribing the rules and regulatory framework for promotions which would be carried out by the Inspector General, with the Commission monitoring the process to ensure that it was being properly carried out. For a while there was some level of stability but clearly, we are still in the woods. Part of the problem is that we live in a country where rationality is in short supply especially when power and resources are involved.
Institutions are quick to rush to the law which is supposedly “very clear” and interpret the same in the manner that expands their powers and functions to the greatest possible extent.
I recall similar conflicts between the inaugural Lands Cabinet Secretary Charity Ngilu and first chairman of the National Land Commission Mumamad Swazuri until the matter ended up at the Supreme Court.
This cannot be allowed at the police service. There is too much at stake. To my former teacher Prof Kithure Kindiki, the Interior CS, this matter requires an urgent solution so that the conflict between leaders of such critical security institutions comes to an end. Failure to resolve internal discord in such critical institutions degrades the government’s credibility as conflict resolvers in hotspots including ongoing banditry in North Rift. That can’t be your legacy Prof.
The writer is an advocate of the High Court of Kenya
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