Interior Cabinet Secretary, Kithure Kindiki's plan to empower chiefs raised concerns from different stakeholders on whether he was overstepping on his mandate and the role of Inspector General (IG) Japhet Koome.
On Thursday, November 17, the CS announced plans to have each chief assigned five police officers in line with the Kenya Kwanza administration's plan to effect changes in the security sector and to improve service delivery.
Kenyan.co.ke engaged various experts on the matter to ascertain whether the CS engaged in illegality through the pronouncements, as the IG is mandated to command the police.
Constitutional lawyer, Senior Counsel Charles Kanjama, indicated that the context of Kindiki's statements needed to be analysed before determining whether he acted outside his mandate.
Kanjama underlined that Kindiki had the responsibility of making policies concerning the police. However, he did not have the power to effect the changes.
"At the first level, the CS has responsibility at the policy level, then the second level is at the police commission, which is an independent body and has a constitutional mandate to oversight over the National Police Service (NPS).
"At the third level, we have the Inspector General of Police who under the Constitution is given independent command of the police service," he stated.
Additionally, he maintained that CS's language and approach in communicating the policy would also determine whether the directive was unconstitutional.
"It is a question of terminology that you use when speaking of the proposal. It should appear as if you are the one doing it.
"You need to demonstrate that you have engaged with the stakeholders," he stated.
In this case, Kindiki argued that the CS's remarks were a proposal rather than an order. Hence he did not overstep his role.
Nonetheless, he added that it was important for the government to establish clear structures to outline the engagement of the police and the chiefs.
In particular, he questioned whether it would be the chiefs who would be the ones to issue instructions to the police against the spirit of the Constitution.
"It will become unconstitutional because the police will have been put under civilian rule in their day-to-day operation," he stated.
Notably, similar changes were proposed by the government in 2019 through amendments to the National Police Service Act. The bill sought to have the administration police command the National Police Service.
However, the move was opposed by civil societies, who stated that the move was unconstitutional. In a statement, Amnesty International-Kenya indicated that police could not be put under civilian rule.
“Command, under the Constitution, is a preserve of the authority of the IG only.
"To the extent that the proposed inclusion intends to justify the interference with the independent command of the IG outside of, or contrary to, the stated constitutional provisions, it is unconstitutional," read the statement in part.
Then leader of the majority and current Defence CS Aden Duale and Demas Kiprono of the Police Reform Working Group also spoke against the bill.
"I can only receive a bill, if it is government-sponsored, from the Office of Attorney General. Such bills must have been approved by Cabinet with a memo clearly attached with a cover letter from the AG’s office explaining it,” Duale stated, clarifying that the proposal was not government-sponsored.
Meanwhile, CS Kindiki, while explaining why he sought to empower chiefs, detailed that the move would not create an authoritarian administration.
“We are also grappling with other unique security challenges, but five police officers per chief should be deployed, subject to the adjustment that we want to make to ensure the police are also deployed to critical national security issues,” he stated at a meeting in Mtwapa, Kilifi County on November 17.
On the following day, at an event in Samburu County, he further disclosed plans to train and arm chiefs in volatile areas.
