Three petitioners challenge Kanja's appointment as police IG

The appointment of Douglas Kanja as Inspector General of Police has been challenged in court.

Busia Senator Okiya Omtatah and other petitioners claim his appointment was illegal and unconstitutional.

In a petition filed at Milimani High Court, the three argue that President William Ruto’s unilateral action to “handpick” Kanja was unconstitutional, violating requirement for a competitive recruitment.

“The President acted unconstitutionally by bypassing a merit-based recruitment, thus undermining public participation and accountability in a position crucial for national security,” states the petition.

Omtatah, Eliud Matindi and Dr Magare Gikenyi are seeking a conservatory order to halt Kanja’s appointment. “The court be pleased to issue a conservatory order suspending the appointment by the President, vide Gazette Notice No. 11821 of September 18, 2024, of Kanja, as the Inspector General of Police,” petitioners seek. “A temporary order be issued prohibiting Kanja Kirocho, from accessing the office of the Inspector General of Police and or performing the functions of the Inspector General.”

The petitioners also seek to quash 36 Acts of Parliament and 95 pieces of subsidiary legislation passed without Senate participation, asserting that these laws violate the Constitution that mandate joint legislation by both the National Assembly and the Senate on matters of national security.

Omtatah contends that all primary and secondary legislation concerning national security under Chapter Fourteen of the Constitution that were passed by the National Assembly alone and without involving the Senate were and are unconstitutional.

“Thus, the Petitioners seek a final order that, if successful, would result in the quashing of at least 36 Acts of Parliament and at least 95 pieces of Subsidiary Legislation,” the court papers state.

In the suit, the Attorney General has been sued for allegedly violating Articles 3(1) and 156(6) of the Constitution.

The petitioners argue that the AG failed to uphold the rule of law and protect public interests in light of these constitutional violations.

They claim the application is extremely urgent and that the President relied on unconstitutional amendment laws enacted solely by the National Assembly in 2014.

The laws amended the original National Police Service Act. However, petitioners argue that the President, using an unknown criterion, headhunted, nominated and, with the approval of Parliament, appointed Kanja as the Inspector General of police, without subjecting him to a competitive merit-based recruitment process open to public participation.

“This is not merely about Kanja. It is about the precedent set by this appointment. It reflects a larger issue of governance in our nation, where political interests often overshadow the rule of law,” Omtatah states.

His lawsuit highlights the constitutional violations laid bare by the Security Laws Amendment Act, which had allowed the President to handpick an Inspector General without public participation or a competitive framework.

The petition states that the laws that amended the original National Police Service Act, which was enacted solely by the National Assembly after the first Senate had been elected under the Constitution are unconstitutional null and void.

They argue that the laws violated the express provisions of Article 239(6) of the Constitution, which provides that, Parliament shall enact legislation to provide for the functions, organisation and administration of the national security organs.

“Hence, upon the election of the first Senate at the general election held on March 4, 2013, the transitional provisions under Sections 10 and 11 of the Sixth Schedule of the Constitution which previously empowered the National Assembly alone to enact all legislation without involving the Senate, lapsed,” Omtatah says.

Justice Bahati Mwamuye has issued a conservatory order to preserve all relevant documentation regarding Kanja’s appointment pending further hearings, with the next mention scheduled for October 15, 2024.