Omtatah sues to bar Kanja from top police post

Three activists have sued to suspend the appointment of Douglas Kanja Kirocho as the Inspector-General of police.

Okiya Omtatah, Eliud Karanja and Dr Magare Gikenyi want a conservatory order barring Kanja from entering his physical office and performing the functions of that office pending the hearing and determination of the case.

The petitioners claim President William Ruto’s action of “hand-picking” and nominating Kanja for approval by Parliament was unconstitutional.

“The hand-picking and subsequent appointment of the 7th Respondent as the Inspector-General of the National Police Service in culmination was an unconstitutional, illegal, and non-competitive recruitment process,” they claim in court papers.

They also allege that all primary and secondary legislation concerning national security under Chapter 14 of the Constitution that were passed by the National Assembly alone and without involving the Senate were unconstitutional.

Subsidiary legislation

They want an order quashing at least 36 Acts of Parliament and at least 95 pieces of subsidiary legislation.
High Court Judge Bahati Mwamuye certified the case as urgent.

He also directed the State to document materials they have relating to the suitability and appointment of Kanja.

“Pending the inter partes hearing and determination of the application and the petition, a conservatory order be and is hereby issued compelling the respondents, jointly and severally, to collect, collate, and preserve all information, documentation, and materials generated or held by themselves or any other State or public body relating to the suitability, nomination, vetting, approval, and appointment of” Kanja, the judge ruled.

The matter will be mentioned on October 15, 2024 for further directions.

The petitioners argue that amending the National Police Service Act in 2014 was unconstitutional because the process did not involve the Senate.

Subsidiary legislation

They say the President, using an unknown criterion, headhunted, nominated and, with the approval of Parliament, appointed Kanja without subjecting him to a competitive merit-based recruitment process open to public participation.

“The laws that amended the original National Police Service Act, that were enacted solely by the National Assembly after the first Senate had been elected under the Constitution are unconstitutional null and void ab initio to the extent that they violated the express provisions of Article 239(6) of the Constitution, which provides categorically that Parliament shall enact legislation to provide for the functions, organisation and administration of the national security organs,” the petitioners ague.
They took issue with Section 86 of the Security Laws Amendment Act that amended Section 12 of the National Police Service Act on appointing the IG.

Subsidiary legislation

The amendments deleted an elaborate procedure that required a candidate to be put through a competitive process.

“In its place it enacted the appointment of the IG through the pleasure doctrine, where the president, using an undisclosed criteria, headhunts and picks an individual to be appointed as IG with the approval of Parliament,” the petitioners said.

The appointment, they explained, is a political process carried out by the political arms of the government with no requirement for professional input.

This, the petitioners say, has resulted in reduced public confidence in the police service.

“It is only an open and merit-based competitive recruitment and appointment of an IG that will satisfy the requirements of Article 245(2)(a) & (b) of the Constitution,” they argue.

Besides amendments to the National Police Service Act, the petitioners also challenge the constitutional validity of all laws in the security sector that the National Assembly enacted without involving the Senate.

The respondents in this case are the Attorney General, the National Assembly, the Senate, the Independent Policing Oversight Authority, the National Police Service Commission, Kenya National Commission for Human Rights and Kanja himself.