The status of Mr George Kinoti as head of the Directorate of Criminal Investigations (DCI) is not certain after a court yesterday declined to suspend his imprisonment for contempt .
According to legal experts, Mr Kinoti is exposed to a possible removal from the State office, his liberty is at risk and his competence and suitability in jeopardy.
The experts say if Mr Kinoti fails to secure stay orders of his sentencing soon, the situation would be so bad that any instrument he signs and decisions he makes in the discharge of his duties as the DCI would have legal implications.
The seven-day window granted to Mr Kinoti by a court on November 18 to present himself at Kamiti Maximum Security Prison lapsed yesterday, as the Attorney General fought against the jail term.
The AG wanted court to issue an immediate stay of the sentence and arrest warrant, but Justice Anthony Mrima declined, saying the court needs to hear the application first.
“If he does not get a stay from court, his liberty is at risk. He is exposed at a removal because anyone can start a disciplinary process for his dismissal. There are many ways of removing an officer from the police service,” Mr Charles Kanjama, a lawyer, said.
The avenues of removing an officer include through the National Police Service Commission (NPSC), which is responsible for disciplinary matters of police, or the Public Service Commission (PSC), which is responsible for public and state officers, said the lawyer.
Mr Kinoti can also be removed through a court process or through Parliament, where the lawmakers debate the conduct of a State officer and recommend removal, he added.
Mr Adrian Kamotho Njenga, another lawyer, said the situation is bad for Mr Kinoti because if he fails to surrender to prison authorities as ordered, he would be viewed to be in further contempt.
“The danger is that he will be arrested because a competent court has ordered that he serves a jail term. It is not practicable by logic or law that you are a convict and you are still in office at the same time. Any Kenyan is likely to petition for his removal,” said Mr Njenga.
A vacancy has arisen in the office of the DCI technically. The moment a court will declare that Mr Kinoti has violated the Constitution and he is convicted, it means he will not be able to discharge his duties.
“His capacity to discharge affairs of that office are obliterated and whenever a person is sworn to that office as director, he or she is actually required to take oath. The oath provides that you shall at all times discharge functions of that office in accordance with the law and you shall adhere to all lawful orders and so on,” he said.
The advocate argued that the AG should have challenged the sentencing immediately in order to save Mr Kinoti from the legal challenges likely to face him.
“Even if Mr Kinoti goes to the Court of Appeal, he may not be entitled to the orders of stay because he will be in further contempt. Until he purges the contempt by surrendering to prison, he will not have audience of the court, because he has not complied with the directive. That is why he needs to report to prison and argue from there,” Mr Njenga said.
Danstan Omari, another advocate, said if the court does not stay its ruling, Mr Kinoti becomes “a fugitive hiding from law”.
However, he added that though the DCI boss is a State officer, the procedure for his removal is not elaborate, because he lacks constitutional security.
“So it can only be the appointing authority who can decide whether to dismiss him. He has been jailed for four months. Under the Employment Act, you only lose the job if jailed for more than six months. Kinoti can go to prison, serve his term, come back and still continue being director of DCI,” argued Mr Omari.
He added that at the time the court sentenced Mr Kinoti, the court failed to look at the practicability of locking up Mr Kinoti.
“How will they implement the order? We are looking at previous decisions of court where several warrants and orders have been issued against state officers and they were never complied with. Under President Uhuru Kenyatta’s regime, compliance of court orders is a problem,” he stated.
Lawyer Kipkoech Ng’etich said the sentencing of Mr Kinoti and his failure to surrender to prison means he does not meet the requirements of Chapter Six of the Constitution.
“It means he lacks mandatory integrity and is unfit to hold public office. It also means Kinoti has risen against the rule of law and constitutionalism. He stands banished from legal office,” said Mr Ng’etich.
