Last March, Inspector General of Police David Kimaiyo transferred 30 junior officers from Athi River Weighbridge Police Station in Machakos County, citing rampant cases of corruption.
Justice George Odunga notes powers to determine promotions and transfers lie with Johnston Kavuludi’s team
The officers received communication of their deployment to other stations on March 6, 2013.
On March 15, in an unprecedented move, the officers filed a suit at the High Court in Nairobi challenging the transfers. They sought to have the directives quashed and the IG restrained from making further move on their employment, transfer and stationing. In an affidavit sworn on their behalf by Corporal Morris Sagala, the officers claimed the IG had purported to remove them from their departments without following the laid down procedures.
They argued that the only body constitutionally mandated to transfer police officers is the National Police Service Commission (NPSC). No reasons or explanations had been given to them and they questioned why the action had been taken.
The officers said the action had been taken without due procedure and they had been condemned unheard, which was a breach of the rules of natural justice.
They told the court that they had recently been posted to the station and their children enrolled in schools within Machakos County.
They noted being the beginning of the year, any changes would adversely affect their children hence the decision to transfer them was unbearable and meant to disorient them. They said they were ready to serve and carry on with their duties at the new stations if the transfers were carried out towards the end of the year.
In his response, the Deputy Director of Personnel of the National Police Service Kapchanga Kitoo argued that the Inspector General’s office is mandated to exercise independent command over officers.
“Section 10(g) of the National Police Act provides that the IG shall have the function of determining the distribution and deployment of officers in the service,” he argued.
Kitoo said due to reports and complaints of malpractices and corruption by the Kenya Highway Authority, which manages weighbridges across the country, it had become necessary to deploy all the officers to other stations.
Malice or bad faith
Further, he argued that the deployment was in accordance with the law and was not meant to condemn the officers. Some 174 officers had been redeployed hence the deployment of the 30 was not actuated by malice or bad faith.
Presiding Judge George Odunga acknowledged that under Article 245 of the Constitution, the IG is empowered to exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.
However, Article 246 sets out the NPSC and gives it powers to recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service. It also empowers the commission to exercise disciplinary control over officers and remove persons holding or acting in offices within the service.
“It is, therefore, clear that the powers to determine promotions and transfers within the National Police Service was given to the commission and any legislation, which purported to take away such powers and place them on any other body would have been inconsistent with the Constitution since to create two centres with the same powers was bound to cause confusion in the administration of the police service,” Justice Odunga held.
Suspension or dismissal
“Kenyans must have had a good reason for removing the powers of transfer of the members of the service from the predecessor of the Inspector General, the Commissioner of Police, to the commission. Since the Inspector General is a member of the commission, it is expected that where a need for transfer of the members of the police service arises, he would be able to explain this position and the commission would be able to take appropriate steps.”
Article 245 states that no person may give directions to the Inspector General with respect to “the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service”
“Reading Article 245 of the Constitution, it is clear that the drafters of the Constitution deliberately left out transfer as one of the powers, which the Inspector General exercises without directions from any one. Therefore, the powers of transfer of members of the service were reserved to the commission,” the judge concluded. “It would appear that there is a difference between members of the service and offices of the service and their source of appointments are also separate,” the judge noted.
He concluded that there was no power given to the IG to transfer the 30 officers hence the move, whether termed as deployment or otherwise, was not supported by the supreme law of the land. The only powers, which the Inspector General could exercise, were the powers to assign the members of the service particular duties, the court held.
The judge ruled that the action was above the legal authority of the IG and declared it null and void.
“In the court’s view, the alleged reports and complaints of malpractices and corruption by the Kenya Highway Authority cannot be resolved by transfer and deployment,” the judge added. “To transfer police officers who are suspected of corruption in my view only amounts to devolving corruption and malpractices and cannot be said to amount to an effort to eliminate corruption. This country has adequate machinery to deal with such malpractices and corruption and transfer and deployment do not form part of them. Where there is evidence of malpractice or corruption, appropriate legal action ought to be taken against the culprits other than transferring them to other areas.”
Popularity gimmicks
Before concluding the judgement, the judge gave a piece of his mind to the IG. “It’s important that the Inspector General of Police and the commissioners of the National Police Service Commission work together for the well being of this nation.
They must remember that under Article 129(2) of the Constitution, executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit. If the two offices do not exercise their authority in a manner compatible with the principle of service to the people of Kenya and for their well-being and benefit, they would be going contrary to the principles of the Constitution.
It is, therefore, hoped that sobriety will prevail between the said authorities and they will avoid political expediency, popularity gimmicks, chest-thumping or competitive streaks that this country has been treated to in recent past.”
By Wahome Thuku, The Standard
