Acting Police Inspector-General Gilbert Masengeli.
Kenya’s security system has been thrown into an unprecedented governance crisis, following the sentencing of Mr Gilbert Masengeli, the most senior officer in the National Police Service, to six months in prison.
Mr Masengeli has been the Acting Inspector-General of Police since July 25.
The National Police Service Commission (NPSC), the body tasked with hiring and firing officers, is still silent on whether Mr Masengeli will stay in office.
But for the moment, the police service is facing the irony of being headed by a convict with a heavy legal and moral burden to deal with.
On Thursday, Masengeli filed an application seeking to set aside Justice Lawrence Mugambi’s conviction and sentence, which was a few hours away at the time, but did not secure orders suspending the judge’s decision.
Mr Masengeli did not appear in court Friday but sent his lawyers led by Cecil Miller to represent him during sentencing.
Mr Miller did not notify the court of any intention of the Acting police boss to appeal the sentence, which means Mr Masengeli will rely on the application he filed on Thursday as a last-ditch attempt to wriggle out of the conviction.
Justice Mugambi’s decision means the door is open for any Kenyan to file petitions for Mr Masengeli’s removal from office, not just as the Acting Inspector-General but from the public service. Mr Masengeli is the substantive Deputy Inspector-General of Police.
The judge suspended the sentence for seven days, during which Mr Masengeli will have an opportunity to purge the contempt. If he is still in contempt after seven days, Mr Masengeli will be required to report to prisons authorities to serve his six-month sentence.
Under the National Police Service Commission regulations of 2015, Mr Masengeli could also be sacked if disciplinary action is taken against him.
The document states that the National Police Service is required to take appropriate action against officers whose actions are deemed to have violated the institution’s rules and regulations.
If the police service fails to take any action, the National Police Service Commission can step in and initiate disciplinary action against the officer.
Mr Masengeli could be deemed to have fallen short of the requirements of Chapter Six of the Constitution, as he is guilty of contempt of court. Chapter six of the Constitution demands that all State officers conduct themselves with integrity.
Contempt of court is a violation of the rule of law, which all State officers are required to respect.
Former Law Society of Kenya President and constitutional law expert, Isaac Okero, said that all government arms should ensure that Justice Mugambi’s decision is adhered to in full.
“We cannot have a situation where people in positions of authority will tell others to follow the rule of law, and then do the exact opposite. The entire government – Executive, Legislature and Judiciary – should support Justice Mugambi’s decision,” Okero said.
“It (Masengeli’s conviction) also questions whether he is fit to hold office. Once we are done with the contempt of court issue, he should step aside,” the former LSK President added.
In 2020, then Interior Principal Secretary Karanja Kibicho was jailed in absentia for three months over contempt of court charges.
Justice George Odunga directed then Inspector General of Police Joseph Boinnet to immediately arrest the Interior PS and send him to prison to serve his sentence. This did not happen.
In 2021, then DCI Director George Kinoti was sentenced to four months imprisonment for failing to obey a court order requiring him to release firearms belonging to businessman Jimi Wanjigi.
Mr Kinoti was required to surrender to prison within seven days failure to which the Inspector General of Police would effect a warrant of arrest against him.
"In the further event the IG of Police fails to execute the warrant, the same shall remain valid and be executed anytime including when Kinoti leaves the office of the DCI," said Judge Mrima.
Mr Kinoti moved to the Court of Appeal and obtained orders suspending his arrest.
Mr Masengeli is the acting IG, and it might not be possible to implement a warrant issued for his arrest unless he is interdicted by the appointing authority.
“Courts only issue declarations but they can never enforce the decisions. The enforcement is left to the government and the employer- the National Police Service (NPS) in this case. It is the government that will decide what to do with the decision,” lawyer Paul Mwangi said.
The lawyer said the declaration will have no effect if the NPS and the government do not enforce it.
“It is still the government that has to effect the arrest and jail him for the period imposed by the court. But we shall wait to see if that is done,” he said.
Lawyer Thomas Maosa says since the police are under the executive, an arrest ordered by the court might not be enforced but the decision puts the government in the spotlight.
The orders for the acting Inspector General of Police were first issued on August 26 for him to appear and explain the whereabouts of activist Bob Micheni Njagi and brothers Jamil and Aslam Longton.
The three were allegedly abducted by persons believed to be police officers, on August 19 in Kitengela and bundled into white Subaru’s.
Their whereabouts since then has remained unknown forcing the Law Society of Kenya to file a petition for their production.
