The National Police Service Commission (NPSC) has urged the Court of Appeal to reverse a decision that allowed the Inspector General of Police to proceed with the recruitment of over 10,000 police constables.
Appearing before the appellate court on Monday, the commission said the exercise proceeded with the Inspector-General (IG) of Police Douglas Kanja, stepping into a space that the Constitution has reserved for the NPSC.
Inspector-General of Police Douglas Kanja.
Photo credit: Dennis Onsongo/ Nation Media Group
The commission added that the recruitment across the country last month was anchored on legal emptiness, “a process undertaken in a vacuum, stripped of the statutory and regulatory safeguards that ordinarily anchor transparency, fairness, and merit”.
In a judgment on October 30, Employment and Labour Relations Court (ELRC) ruled that the recruitment of police constables is a constitutional function exclusively vested in the National Police Service as a national security organ.
The ELRC went ahead and declared some sections of the National Police Service Act as unconstitutional, for interfering with the independent command of the Inspector-General of Police.
The NPSC said the trial court swept aside the National Police Service Commission (Recruitment and Appointment) Regulations, leaving no guiding framework, no structured criteria, and no lawful guardrails for a function as delicate and consequential as the recruitment of new officers into the Service.
“That moment illustrated a system operating without its compass, where a constitutional function proceeded without the laws meant to give it coherence, legitimacy, and public confidence,” NPSC submitted.
Another petition was filed before the High Court and the recruitment of the 10,000 constables was temporarily suspended, but the order was later lifted, allowing the exercise to proceed.
Milimani Law Courts in Nairobi.
Photo credit: File | Nation Media Group
In the appeal, the commission argued that the implementation of the judgment issued by the Employment court will cement an unconstitutional transfer of the commission’s mandate to the police IG, resulting in the progressive reorganisation of the National Police Service’s human resource framework.
The Commission further said the authority to recruit, appoint, transfer, promote, disciplinary control and manage human resource management will become embedded within an institution that lacks constitutional empowerment to exercise it, if the judgment stands.
The commission added that the institutional arrangements that the Constitution deliberately assigned to civilian oversight through the commission will be gradually dismantled in favour of an internal police-controlled system.
NPSC said the intended appeal will lose practical utility because reinstating the constitutional order after prolonged implementation will require undoing entrenched administrative decisions taken without lawful authority.
"The impugned judgement, delivered with the stroke of a pen, effectively erased the substance of Article 246 and swept away the mandate of the commission," commission told the court.
The commission further argued that the ELRC made a mistake by purporting to create two distinct categories of staff within the National Police Service thereby suggesting the existence of two different employers within a single constitutional entity.
The NPSC maintained that the recruitment carried out by the NPS was irregular and unconstitutional as it was being undertaken in the absence of a valid regulatory framework.
Chief Executive Officer of the National Police Service Commission, Peter Kiptanui Leley.
Photo credit: File| Nation
“In the absence of the Regulations, which given effect to and operationalise Article 246(3) of the constitution and sections 28 of the National Police Service Commission Act, there exists no lawful procedure governing the recruitment of police officers, thereby rendering the process void ab initio for want of legality and procedural propriety,” NPSC Chief Executive Officer Peter Leley said in an affidavit.
Mr Leley added that the constitutional mandate of the NPSC should be preserved to ensure continuity in the command structure and effective administration of the NPS, pending the determination of the appeal.
