Legal Provisions on the Office of the Inspector General
The office of the Inspector-General is established under Article 245 of the Constitution and Section 8 of the National Police Service Act, No. 11A of 2011.
According to Article 245(2)(a), the Inspector-General is appointed by the President with the approval of the Parliament and in sub-article (2)(b) as read together with Section 8 of the Act, s/he shall have overall and independent command over the National Police Service. Under Article 240, he is also a member of the National Security Council, which exercises supervisory control over national security organizations; and under Article 246, he is a member of the National Police Service Commission.
The Inspector-General is only appointed for a single term of four years, and can thereafter not be reappointed. The procedure for his/her appointment is spelt out in Section 12 of the Act and is as follows:
- The President shall constitute a panel with representatives from his office, the Law Society of Kenya, the Kenya National Commission on Human Rights and the Police Oversight Independent Authority. This panel shall then send out a declaration of the vacancy in the office of the Inspector-General and receives applications over the same,and shall conduct public interviews and shortlist at least three persons for the position. These names shall then be published in the Gazette.
- Within seven days of this nomination, the names shall be forwarded to the President for nomination of an Inspector-General, who shall within seven days of the receipt of these names nominate a person for the position then forward the nominee's name to the Parliament for approval.
- The Parliament shall then, within fourteen days of the receipt of this name, vet the nominee and either approve or reject them, and notify the President of this approval or rejection. If approved, the President shall, within seven days of this notification of approval, appoint the nominee as Inspector-General by notice in the Gazette. If rejected, the Speaker of the National Assembly shall communicate this to the President and request for a fresh nominee. The President shall be required to nominate another person from the shortlisted names within seven days.
The Inspector-General shall only be removed from office on the grounds laid out in Article 245(7) of the Constitution. These grounds are:
- Serious violation of the provisions of the Constitution.
- Gross misconduct, whether in the performance of duties or otherwise.
- Physical or mental incapacity to perform their functions.
- Or any other just cause.
Under Section 15 of the Act, a person desiring the removal of the Inspector-General from office on any of the above grounds may petition the National Police Service Commission setting out the alleged facts constituting that ground. The Commission shall then consider the petition and if two-thirds of the members present and voting agree that it discloses a ground for dismissal, it shall recommend to the Parliament a recommendation for removal. If the Parliament is also satisfied that there is a ground, it will forward the petition to the President who will then constitute a tribunal to investigate the matter and make a binding recommendation to the President, who shall act in accordance with it. While the Inspector-General is suspended for the above reasons or is incapable of performing their duties, the may appoint the Cabinet Secretary in-charge of internal security to be the Inspector-General for not more than three months.
Under Section 20(1)(b), the Inspector-General may also choose to resign from office. This section provides for the vacancy of this office. It shall become vacant on the death, resignation, or removal from office of the Inspector-General.
Currently, the Inspector-General, in light of the recent spate of threats to security, offered to go into early retirement. This is different from resignation, where one vacates office immediately and ceases to hold it. The Inspector-General still holds his office until the appointment of another official.
The appointment of a new Inspector-General is a rigorous process involving the participation of many public bodies mentioned above. This is because it is an independent office. However, the Security Laws (Amendment) Bill currently being discussed in Parliament seeks to change this provision by proposing that the President shall instead, within fourteen days of the vacancy of this office, nominate a person for appointment and submit this name directly to the National Assembly (Section 97(a)). Section 97 (b) of the Bill deletes subsections 3, 4, 5, 6 of the Act which provide for the participation of the panel in the public vetting of the President's nominees, nomination of three potential candidates, and their approval by Parliament.
Another crucial departure from the Act provided for by the Bill is the elimination of the public participation in the removal of the Inspector-General provided for under Section 15. Here, as earlier explained, any person desiring the removal the Inspector-General on the Constitutional grounds above can present a petition to the Commission on the same. Section 98 of the Bill seeks to delete subsections 2, 4, 5, 6, 7, and 8 of Section 15 of the Act that provide for the procedure of the consideration of such a petition, also discussed above.