By CYRUS OMBATI
As the country celebrates the promulgation of the Constitution, the fate more than 200 senior police officers hangs in the balance.
The National Police Service Act, one of the laws guiding police reforms, does not recognise some of the existing ranks in the police service. It scrapped five ranks like Commissioner of Police, Deputy Commissioner of Police I and II, Deputy Commissioner of Police, Senior Assistant Commissioner of Police and Assistant Commissioner of Police of both regular and Administration Police.
About 200 officers are affected meaning they will be in office illegally.
The Act introduced new structure with Inspector General at the top, Deputy Inspector General, Assistant Inspector General, Senior Superintendent, Superintendent, Assistant Superintendent, Chief Inspector, Inspector, Senior Sergeant, Sergeant, Corporal and Constable.
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According to the Constitution Implementation Commission chairman Charles Nyachae, the current police commanders are in office illegally.
He said the new command should have been in office long time ago and what we have is an illegality.
“They are intentionally creating a constitutional crisis because they know what the law says. Someone can challenge their stay in office,” he said.
The chairman of the Independent Policing Oversight Authority (IPOA) Macharia Njeru too anticipates a crisis. He said the authority has written to acting Head of Public Service Francis Kimemia and PS in the Prime Ministers’ office Mohamed Isahakia to remind the principals on their failure and crisis they are plunging the country into.
“What if a court rules the current senior police commanders are illegally in office. Does it mean police will not arrest suspects or take any action?” posed Njeru.
He added the authority also plans to take legal action on the two as stipulated in the Act and cited some sections that empower them to sue anyone who defies their order.
Senior officers who talked to The Standard said they are worried and accused the Executive of being responsible for the situation.
They said they had been informally told that Internal Security minister would issue a legal notice recognising the current structure, but that too would be another illegality.
“There may be a crisis unless Parliament moves in to save the situation. We are informed there is a plan by the minister to issue a legal notice on the ranks, but we don’t know if that will be legally binding,” said a senior officer who asked not to be named.
The process of appointing the Inspector General lies in the Fifth Schedule of the Constitution and is so far behind schedule. Commissioner of Police Mathew Iteere said despite the uncertainty, his officers would co-operate.
“What we now see as our challenge is to continue laying the ground so that when these offices are finally in place, they will take over a process that is moving towards the right direction,” noted Iteere.
IPOA wrote to the Principals reminding them the appointment of the IG is not pegged on the establishment of the NPSC.
“Indeed the National Police Service Act makes it mandatory for the President in consultation with the Prime Minister to constitute a selection panel within 14 days after the commencement of the Act for purpose of competitively recruiting the IG,” says part of a letter from Njeru.
Mr Njeru told both the president and PM failure to constitute the panel is a violation of the law amid fears from other stakeholders that individuals may move to court after the August 27 deadline of establishing the police command structure to challenge the stay of office of the current officers.
Anyone can move to court if the deadline passes and Parliament fails to extend the period as stipulated in the law. Njeru raised the issue in his letter to the principals saying IPOA did not need to overemphasise the legal minefield created by the failure in view of the fact that the Act has rearranged the command structure of the service.
The IPOA chairman also questioned why the Act had been shelved at the Government Printer since August 30, 2011, when it was assented to by the President.
“For reasons we are unable to comprehend the Government Printer did not make available to the public the Act until few days ago, which seems to have been upon question around this issue being raised by inter alia IPOA,” says part of the letter dated July 27. He said yesterday, the two offices did not respond to his letter hence his move to write another one today.
NPSC will only appoint the two deputies of IG and director of CID other than performing other duties.