Citizens oversight in policing must surmount legal formalism

The recent Court of Appeal ruling in the National Police Service Commission (NPSC) vs National Police Service (NPS) has settled a monumental constitutional dispute, that the power to recruit police constables rests solely with the Inspector General, not the NPSC.

While the appellate court prioritised the text of the Constitution, interpreting the IG’s independent command as the exclusive domain over personnel, it has left a dangerous vacuum. By equating operational command with human resource management, the ruling inadvertently shields the recruitment from the civilian oversight Kenyans fought for.

In its legal formalism, the Court positioned the IG as the absolute authority over employment, assignment, and discipline, leaving the NPSC with a limited role over civilian staff. The Respondents, who included the IG, NPS, Harun Mwau, the Attorney General and the National Security Council argued successfully that splitting HR matters from command creates a duality that fractures authority and threatens national security.

The Appellants, including the Law Society of Kenya, countered that operational command and HR management are distinct, and that civilian oversight ensures necessary checks and balances. What the courtrooms failed to adequately capture is the voice of the wananchi.

As documented in the November 2023 Maraga Taskforce Report, citizens across all 47 counties expressed deep skepticism regarding police recruitment. The report exposed rampant corruption, nepotism, and selling of police positions for up to Sh600,000.

Citizens demanded stricter civilian oversight to dismantle patronage networks that have historically compromised the professionalism of the Service. The Court’s ruling, by prioritising the IG's absolute autonomy, risks silencing these demands for accountability.

To be clear, the IG's operational independence is vital. However, independence in command must not be conflated with impunity in human resource management.

The Maraga Report revealed a service where leadership failure, corruption, and endemic nepotism were the root causes of ineffectiveness. To safeguard national security, we must ensure the IG commands a force hired on merit, not one built on spoils of corruption.

We cannot let the judicial ink dry on this landmark ruling without addressing the citizen demands that made police reform a constitutional imperative in the first place.

I propose a focused, short-term taskforce to bridge this gap. This taskforce would distill the Maraga Report specifically into citizen demands for recruitment transparency and invite the IG and NPS leadership to public accountability fora across all 47 counties. These sessions would not be adversarial; rather, they would be demonstrative. The IG would be required to publicly explain how the current recruitment framework has addressed the citizen concerns of the past.

Crucially, the proceedings, recorded verbatim, would form the official basis for ongoing parliamentary oversight and IPOA monitoring of the NPS. To ensure compliance, citizens must receive annual implementation reports, tracking the status of these constitutional demands until each component is satisfactorily exhausted within a five-year window.

This is not about undermining the Court of Appeal’s ruling. It is about operationalizing it. If the IG is the sole recruiting authority, then the IG must be the sole officer accountable to the public for the integrity of that process.

The Court of Appeal has defined the architecture of the command; we must now define the accountability of the commander. By inviting the IG to the public square, we ensure the independent command remains rooted in constitutional values of transparency and meritocracy, not in the shadowy corners of patronage that the Maraga Report laid bare. Let us not trade the tyranny of the commission for the tyranny of an opaquely insular command.