President can send Police boss Kimaiyo home, lawyers say
By Nzau Musau | November 30th 2014
|Inspector General of Police David Kimaiyo has come under intense criticism following recent spate of terror attacks in the country. (Photo:File/Standard)|
As calls for removal of Inspector General of Police David Kimaiyo intensify, debate has emerged on whether he enjoys security of tenure or not.
Some of Kenya’s top legal brains argue that Mr Kimaiyo does not and can be dismissed any time at the will and whim of the President.
Senior Counsel Ahmednasir Abdullahi and Justus Otiso, the acting dean of Kabarak School of Law concur that Kimaiyo can be sacked by the President but disagree on the process.
Dagoretti South MP Dennis Waweru, however, said the debate on whether he enjoys security of tenure or not is irrelevant since his removal is no panacea to the insecurity sweeping across the country.
The scrutiny comes when Kimaiyo is not in the limelight, allowing his deputy Grace Kahindi to represent him, as was the case on Friday when she joined the Minister for Devolution Ann Waiguru (Interior Minister Joseph ole Lenku also absent) at a press conference on the stripping of women.
As keen observers ask for the whereabouts of Kimaiyo and Lenku, the pressure is mounting on President Uhuru Kenyatta to kick both out for alleged incompetence and sleeping on the job. But is it possible to remove the former?
According to the Abdullahi, the question is not whether but when.
“Article 245 of the Constitution is clear even to a baby. Any false pretence to security of tenure through the National Police Service Act is immaterial and irrelevant. The Constitution is clear that he can be dismissed by the President on a number of grounds,” Abdullahi said.
He told The Standard on Sunday that of the six grounds listed by the Constitution, Kimaiyo can be removed on three; serious violation of the Constitution, incompetence and “any other just cause.”
“He has violated the Constitution not once, not twice but many times. In fact, I have obtained a court order to have him dragged to court on December 5 following repeated failure to honor court directions.
“That is a serious violation of the constitution,” Abdullahi said. “On incompetence, he is obviously out of depth. We have lost him to popular public parody, ridicule and satire owing to his incompetence. On the “any other just cause”, the President can latch onto popular disaffection with his performance to kick him out. Security is largely perceptive. If people do not trust Kimaiyo, why should he be kept there?”
New security challenges
Mr Otiso said the clamour to remove Kimaiyo is misplaced in law. “A petition ought to be presented to Parliament,” his argument goes. Otiso also argues that even a parliamentary petition were to make finding of incompetence against Kimaiyo, it would not be automatic that the President would remove him.
“The power to remove him is discretionary. The wording of Article 245(7) is not couched in mandatory terms,” he says.
Mr Waweru on the other hand said Kimaiyo’s is but one cog in the wheel of national security. His argument is that security requires more than one person’s competence to achieve and warns against giving Kenyans false hopes.
He reiterated President Kenyatta’s statement earlier in the week when he challenged Kenyans to play their role before pointing fingers.
“Kimaiyo is just but a figure-head of an intricate web of Government bureaucracy grappling with new forms of crime which have taken the world by storm. They need support more than anything else. The questions we should be asking ourselves is whether we have given adequate support to invoke such kind of drastic action as rolling their heads, we have not,” Waweru said.
The MP said Kenyans should take the debate to a new level of whether the training accorded to security agents is responsive to new challenges, whether the sort of security budget passed yearly is adequate in the face of rising insecurity and how historical grievances of various groups can be sorted out once and for all.
He added that sacking Kimaiyo could amount to the entire nation burying its head in the sand.
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