We do not have an agency quite like the FBI. The Directorate of Criminal Investigation, which is part of the National Police Service, investigates ordinary crimes. There is also the National Intelligence Service, once part of the police but now separate.
The Constitution says, “The national security organs are subordinate to civilian authority”.
It is important to realise that this does not mean the government can tell any part of the police how to do its job. It can give general instructions on policy, but not about investigating any particular case, how it treats any particular person or employment or dismissal of any particular officer. The situation is less clear for the NIS.
Though the President appoints the Inspector General of Police, he can remove him or her only because of something serious, including serious violation of the Constitution or any other law, gross misconduct, incapacity or incompetence. There is another reason: “Any other just cause”. This does seem rather broad and unclear. But it does mean that the President cannot dismiss for no particular reason. And it means that the reason ought to be clear.
The Constitution gives the President no power to dismiss any other police officer. But things are different for the NIS: The President may dismiss the Director General, and neither the Constitution nor the law prescribes any procedure or any justifications for dismissal. Almost certainly the NIS rather than the police would investigate a case similar to the Trump-Russian affair.
However, like any other public officer, the President must make any administrative decision in a fair way. That would include a decision to dismiss someone — including the IGP and the Director General of the NIS. Fair decision-making includes giving a person likely to be affected a chance to put his or her own case. It includes not making decisions on the basis of personal interest. And it includes a duty to give reasons.
The right of access to information means that anyone could ask the President to explain why a decision has been taken. There are good reasons sometimes for refusing information. Protecting oneself would not be a good reason.
Chapter Six of the Constitution says any state officer must avoid any conflict between his or her personal interests and public duties. This applies to the President as much as to any other person. And a gross violation of the Constitution is a ground for MPs to begin the process of removing the President — impeachment.
Our Constitution does not expect any public officer to swear loyalty to the President. For example, a Cabinet Secretary must swear to be faithful to the Republic (not the President), to serve the people and the Republic (not the President) and be a “true and faithful counsellor to the President”. The loyalty of public officers is to the Constitution and the nation, not to an individual. The US situation is similar: The Constitution says that oaths of office are “to support the Constitution”.
Our Constitution mentions the “rule of law” seven times, from the Preamble to the duty of the Attorney General to “promote, protect and uphold” it, and the principle that “national security shall be pursued with the utmost respect for the rule of law”. And the President must “ensure the protection of human rights and fundamental freedoms and the rule of law”.
Our Constitution was designed under the influence of a profound distrust of power and those who exercise it. It is unfortunate, perhaps, that it gives a President so much power over appointment and dismissal of the heads of the police and the NIS. But there are many requirements and principles that hedge even these presidential powers.
The rule of law, the requirements for fair procedures, the prohibitions on conflict of interest, the requirements for public openness — like giving reasons — and the limitations on the powers of the President, even if not enough, should all, if properly applied, make it hard for something such as Trump-Comey to happen in Kenya.
But there have been changes to the law, actual and threatened, making it easier for the president to control, and even dismiss senior security services officers. It is up to Kenyans and their democratic institutions and their courts to ensure that the constitutional limits are respected.