Victory for police officers as court stops frequent transfers
New recruits during the passing out parade at the National Police College Main Campus in Kiganjo, Nyeri County, in January.
Frequent transfer of police officers, especially female and officers who have families, from one station to another amounts to unfair labour practices and violation of constitutional rights, a court has ruled.
In the precedent-setting judgment, Justice Onesmus Makau said before transferring or deploying an officer to a new station, the National Police Service must consider the family and rights of his/her schoolgoing children.
“Since Article 45 and 53 of the Constitution recognises and protects family and rights of children to basic education among others, the National Police Service must consider family and rights of schoolgoing minors in the custody of the police officer before transferring or deploying the officer, and especially female officers. Failure to consider such relevant factors in my view is engaging in unfair labour practices,” ruled Justice Makau.
The judgment is a major victory to married officers and those who have children since family obligations will now become a critical factor to be considered before being transferred to another station.
Sitting at the Employment and Labour Relations Court in Nyeri, Justice Makau also held that the frequent redeployments that do not allow an officer to settle down at his/her new station amounts to unfair labour practices.
“Even if an officer has executed an appointment or contract to serve anywhere in the country, the National Police Service Commission (NPSC), Inspector-General of Police (IG) and Deputy Inspector-General (DIG) have an obligation to act fairly taking into consideration all relevant factors before moving the officer either on transfer or deployment,” Justice Makau further said.
He ruled that the right to fair labour practices under Article 41 (1) of the Constitution also applies to officers in the National Police Service.
The judge made the findings while ruling on a case filed by Corporal Sicily Gituku Namu, a traffic police officer who sued the NPSC, Inspector-General of Police and Deputy Inspector-General arguing they had violated her constitutional rights through “frequent and punitive” deployments.
Through lawyer Wahome Gikonyo, Corporal Namu, a mother of two minors, said in frequently and speedily deploying her from one station to another, the NPSC together with IG and DIG were violating her rights and those of her children.
Mr Gikonyo said the IG transferred Corporal Namu three times between January 23 and February 13, 2023.
She was transferred from Gilgil to Kirinyaga, Nakuru and Nyeri counties. Court papers indicate that on January 23, 2023 she was deployed to Kirinyaga-Kerugoya police station (Traffic) duties with immediate effect.
She said on February 1, 2023, she was deployed to Rongai Sub-county, Kambi ya Moto police station, with immediate effect. Two weeks later, on February 13, 2023, she was deployed to Central Regional Headquarters at Nyeri Operation Room.
As a result, she moved to court to challenge the frequent redeployments because, in her view, they were violating her rights to fair labour practices. Lawyer Gikonyo stated that the said transfers were disguised as temporary deployments.
The lawyer said failure by NPSC, IG and DIG to take into account the need to recognise and protect the family, while exercising power to transfer an officer, amounts to failure to consider a relevant fact and, therefore, the decision is irrational.
Before the challenged frequent deployments, Corporal Namu had been posted to various stations including Gilgil police station (Nakuru-Naivasha) performing Traffic duties from March 2017 to January 2023.
She informed court that the frequent and speedy deployments were being used as a disciplinary sanction.
“It affects me adversely as I am a family lady with minor children who are in school and who are in my custody,” she said.
Corporal Namu argued that the children’s right to education under Article 53 of the Constitution was also affected by the frequent deployments and diversions.
“The frequent and speedy ‘deployments’ are against the National Police Service Commission (Transfer and Deployment) Regulation, 2015 as they have not been sanctioned by the Commission. The speedy and frequent ‘deployments’ have been used in a manner to be construed as being used as a disciplinary measure contrary to regulation 3 (2) of the regulations,” said lawyer Gikonyo.
He also alleged discrimination of Corporal Namu as the said deployments and transfers were effected without explanation or hearing and that other officers were not being transferred frequently.
“It is unfair to keep on transferring an employee frequently and speedily even before I settle in one station while there are over 10,000 officers who have remained in one station for over five years yet no explanation or reasons are offered for the frequent and speedy transfers,” said Corporal Namu in her affidavit.
In his judgment, Justice Makau said there was no evidence of discrimination against Corporal Namu.
“No evidence was adduced to prove that other officers were spared from the deployment on account of family, schoolgoing children or recent posting,” he said.
He, however, stated that it was incorrect for the NPSC, IG and DIG to allege that they did not know that Corporal Namu had a young family.
“The court takes judicial notice of the fact that the respondents have a database of its officers’ information including their spouses and children who must be factored in the medical cover provided by the respondents,” said the judge.
Justice Makau said Article 3(1) of the Constitution requires the NPSC together with the IG and DIG to uphold all the tenets of the Constitution, including recognition and protection of the family.
According to the judge, the frequent deployments were adversely affecting the education of the officer’s minor children.
“Failure to consider the effects of the purported deployment on Corporal Namu’s family and especially the minor children under her custody was failure to consider a relevant factor in the decision to deploy her,” ruled Justice Makau.
He rejected arguments by the NPSC, Inspector-General of Police and Deputy Inspector-General that the rights under Article 27 (Equality and freedom from discrimination) do not apply to Corporal Namu because her rights are limited by virtue of being a police officer.
The judge said the Inspector-General of Police and the Deputy Inspector-General were using deployments to circumvent the provisions of the Constitution, National Police Service Act and the National Police Service Commission (Transfer and Deployment) Regulations, which takes away from him the mandate to transfer officers.
He also found that the said deployments were indeed transfers as the officer was paid transfer allowance.
“The said action was contrary to the Constitution, the said Statute and Regulations because transfers is the mandate of the commission while the IG only does deployments which are meant to be temporary. Evidently, all the deployments done here, the commission was not involved. An officer in the petitioner’s circumstance is, therefore, justified to deem that a deployment by the IG and DIG means transfer,” said the judge.
The court directed the NPSC, IG and DIG not to move Corporal Namu from Kirinyaga-Kerugoya police station (Traffic) except as contemplated by the law.
In their defence, NPSC together with the IG and Deputy IG denied the alleged violations and argued that the deployment of Corporal Namu was neither punitive nor discriminatory.
“The deployment of Corporal Namu was not initiated as a disciplinary sanction but rather to ensure balance of work. She has not made known to the respondents the issue of two schoolgoing minors for consideration prior to the deployment. She ought to have informed the respondents about the custody of the minors in order for the respondents to offer her the required support,” they argued in response to the petition.
They also stated that the deployment was done lawfully by the IG, who has the legal mandate to deploy officers based on the need for services among other reasons set out in the law.
