You have probably read about the turf war between the Inspector General of Police and the National Police Service Commission (the commission)–portrayed, sadly, as motivated by desire to control the resources involved in recruitment.

My starting point was wondering how a judge, in a case brought by Harun Mwau, could have denied
that Article 246 of the Constitution says what it seems very clearly to say. And how could the respected
commentator, Kamotho Waiganjo (in Saturday’s Standard), approve of the judge’s decision?

THE DILEMMA
Under Article 246( 3 ), the commission is to:

(a) recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service [NPS];

(b) observing due process, exercise disciplinary control over and remove persons holding or acting in offices within the Service;…

Yet Justice Wasilwa concluded, “the National Police Service Commission has no power in relation to employment, assignment, promotion, suspension or dismissal of members of the service.”

THE COURT’S REASONING
A few constitutional provisions suggested to the court that the commission could not really appoint and
dismiss police officers. First Article 245( 4 ) says that no one may direct the IG about employment etc. of “any members” of the police service. If appointment of police was the job of the commission why should anything be said about not directing the IG about it?

Second, the IG is to exercise “independent command” of the police (Art. 245( 2 )(b)). If the IG cannot
appoint them is he really exercising command?

And third is that recruitment by the national security organs must reflect the national diversity (Art. 238 (2)(d)). But the commission is not listed as a national security organ. This seems to be the latest in a series of courts convinced that the commission cannot appoint police persons. This court used the reasoning of Justice Odunga in an earlier case: he held that “members of the service” are the police themselves, and those “holding office” are civilian employees of the service. And the commission appoints only the latter.

In another case Justice Makau had said that “independent command” must include “recruitment training,
deployment transfer, promotions, performance, discipline and accountability”.

WHAT’S MY PROBLEM?
My main objection is that I believe that the Constitution makers intended that the commission should appoint police officers. We have several service commissions. The Judicial Service Commission appoints judges, magistrates and others in the judiciary. The Public Service Commission appoints people to the public service, confirms appointments and exercises disciplinary control over and removes persons holding or acting in offices in the service. The Teachers Service Commission does the same for teachers. The language used in the Constitution is very similar for the PSC, the TSC and the Police Service Commission.

In the 1963 Constitution there was a Police Service Commission. That Constitution said, “The power to appoint persons to hold or act in any offices in the Police Force of or above the rank of Sub-Inspector
(including the power to confirm appointments), the power to exercise disciplinary control over persons
holding or acting in such offices and the power to remove such persons from office shall vest in the Police
Service Commission.”

The final report of the Constitution of Kenya Review Commission said, “the independence and integrity of the Police Force was severely dented by abrogating, in 1966, the Police Service Commission and the
operational autonomy and security of tenure of the Inspector-General of Police. This led to rapid politici-
sation of the way in which police functions were discharged and led, the especially to the suppression of
opposition rights.” Evidently the CKRC hoped to restore policing in the country to a happier past.

For the CKRC the functions of such a commission included appointment of members of the service. The Bomas draft of 2002 that first introduced the commission did not, unlike the 1963 Constitution, divide
the police on the basis of rank, only the more senior to be appointed by the commission.

Justice Odunga’s reasoning, I hate to say, seems very weak. If the drafters had really intended they could
so easily have said the commission would appoint “civilian members” of the service.

We call police persons “officers”. And the NPS Act speaks of “civilian members of the service”. To attach so
much significance to these words, as Odunga did, is not convincing.

In another case, Justice Makau seemed convinced by the “command” argument. However, the commission itself argued in the Mwau case “the framers of the Constitution intended a functional distinction between operational command and human resource management. The Inspector General commands the Service in the discharge of policing duties, while the National Police Service Commission manages the Service’s human resource functions.” They did not, unfortunately, refer to the CKRC report and history.

From a practical point of view: would the framers of the 2010 Constitution really have set up a high-powered commission – a chair qualified to be a High Court judge, the IG and the two Deputy IGs, as
well as five other distinguished people – merely to appoint civilian members of the NPS? It would have
been simpler to assign this task to the Public Service Commission.

The CKRC was clear: the point was to avoid government involvement in the appointment of the actual police officers. The IG is, under the Constitution, appointed by the President – arguably risking too much government involvement in appointment and disciplinary matters.

WHAT ABOUT THE PROBLEMATIC PHRASES?
If I am so sure what the CKRC intended, how do I deal with the difficult issues? As I have indicated,
I do not accept that “command” necessarily includes appointments. Command is far more than appoint-
ing and disciplining. It controls what the officers do on a day-to-day basis.

I would agree that there was some oversight on the part of the drafters when they spoke of no one directing the IG on appointments. This language was not in the Bomas draft, appearing first in the Committee of Experts 2009 draft. I suspect the inconsistency escaped notice because the topic was not considered controversial.

Although it indicates two contrasting views of who has the power to appoint etc., I find it hard to see that
it should take precedence over the straightforward statement about appointments by the commission.
As already indicated, I find Justice Odunga’s effort to “interpret away” the latter, unconvincing.

And the statement about “recruitment by the national security organs” which must reflect Kenya’s
diversity? Again I agree that there is a bit of inconsistency. But Article 246 about the Commission and its
functions also says “The composition of the National Police Service shall reflect the regional and ethnic
diversity of the people of Kenya.” It is not restricted to any part of the NPS, and clearly suggests that this is something that is the responsibility of the Commission. It was added at the last minute by the Committee of Experts.

KAMOTHO WAIGANJO?
I think Waiganjo may have written in a bit of a hurry – explaining why he said that the judge is in the High
Court when she is in the Employment and Labour Relations Court.

He argues that the function of the commission is purely “oversight”. But oversight is not even mentioned in Article 246.

He also says that Chapter 15 commissions are generally oversight commissions and do not carry out
functions otherwise performed by the government.

This is true of the human rights commissions, but commissions responsible for elections, fixing salaries and making recommendations for sharing revenue between national and county governments and the
various service commissions, all do things that otherwise government would do. They are not purely over-
sight bodies.

As he also says, the Supreme Court, if the case gets there, would have the last word.

This article was first published by The Star Newspaper.

Image: Newspaper Screenshot