High Court upholds urgent petition to recall IG Douglas Kanja
Inspector General of Police Douglas Kanja taking the oath of office at the Supreme Court.
Busia senator Okiya Omtatah has moved to court seeking the removal of Inspector General of Police Douglas Kanja, arguing that his appointment was illegal as he was not subjected to competitive recruitment.
High Court judge Bahati Mwamuye certified the petition as urgent and ordered the preservation of all information, documentation, and materials generated relating to the suitability, nomination, vetting, approval, and appointment of Mr Kanja as the Inspector-General of Police.
“The application be and is hereby certified urgent and it shall be heard on a priority basis,” said the judge.
Mr Omtatah said President William Ruto relied on unconstitutional security laws enacted in 2015 to “headhunt, nominate and appoint” Mr Kanja to the position, with the approval of Parliament.
The judge noted that Mr Omtatah was challenging all primary and secondary legislation concerning national security under Chapter 14 of the Constitution, which were passed by the National Assembly in 2015, without involving the Senate and therefore, which he said are unconstitutional.
“Thus, the Petitioners/Applicants seek final order that, if successful, would result in the quashing of at least 36 Acts of Parliament and at least 95 pieces of Subsidiary Legislation,” said the judge.
The court directed the case to be mentioned on October 15, for further directions.
Mr Omtatah argues that before they were amended, Sections 12, 13 and 30 of the National Police Service Act mandated the NPSC to advertise, shortlist, interview, and competitively recruit the IG, DIGs, and the Director of Criminal Investigations (DCI), with vetting and approval by Parliament.
He said the first IG, DIGs and DCI were recruited through a rigorous recruitment process, a move that “roused a lot of confidence in the minds of Kenyans that they would now have a police service that was responsive to their needs”.
The senator together with Eliud Karanja and Dr Magare Gikenyi stated that the laws that amended the original National Police Service Act, were solely made by the National Assembly without involving the first Senate.
“The Security Laws Amendment Act (2014), together with The Statute Law (Miscellaneous Amendments) Act, 2015 (2015) mutilated the NPS Act to eliminate the competitive recruitment of the IG, the Deputy Inspector-General, and the Director of Criminal Investigations,” Mr Omtatah said.
He said Section 86 of the Security Laws on the appointment of the Inspector General deleted the elaborate procedure, under the autonomous special purpose selection panel, of making the appointment through an objective, competitive, transparent, merit-based and inclusive recruitment process that involves public participation.
“In its place it enacted the appointment of the IG through the Pleasure Doctrine, where the President, using an undisclosed criterion, headhunts and picks an individual to be appointed as the IG with the approval of Parliament,” he said.
He further said Section 87 of the Security Laws amended Section 15 of the National Police Service Act on the removal of the Inspector-General, by removing the security of tenure that was granted the office holder by ensuring that his or her removal was accorded due process under the law before an independent tribunal set up for the purpose.
The petitioners said in what advances the Pleasure Doctrine even further, it is left entirely to the President to subjectively determine when the Inspector-General may be removed from office only for the grounds stipulated under Article 245(7) of the Constitution.
“And, it also removed the power ordinary members of the public had to directly supervise the IG by being able to initiate the office holder's removal from office. After the amendment, it is only the President who can decide whether or not to remove the IG,” he said.
